1 nms1359-11 vai IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1359 OF 2011 IN SUIT NO.1005 OF 2011 Malad Kokil Co-operative Hsg. Soc. Ltd. ....Plaintiff V/s. Modern Construction Company Pvt. Ltd. & Ors. ....Defendants ALONG WITH CIVIL APPLICATION (STAMP) NO.14310 OF 2011 IN APPEAL FROM ORDER (STAMP) NO.14308 OF 2011 ALONG WITH APPEAL FROM ORDER (STAMP) NO.14308 OF 2011 Sundarvan S 4 Co-op. Hsg. Soc. Ltd. ....Petitioner ..Ori.Plaintiff V/s. The Modern Construction Co. Ltd. & Ors. ....Respondents ..Ori.Defendants Mr.D.D. Madon, Senior Counsel with Mr.Nishant Sasidharan, Mr.Trupti Shety Faiza Dhanani i/b Dhruve Liladhar & Co. for the Plaintiff in support of Notice of Motion No.1359 of 2011 in Suit No.1005 of 2011. Mr.Pravin Samdani, Senior Counsel with Mr.Virag Tulzapurkar, Senior Counsel and Mr.Simil Purohit i/b Wadia Ghandy & Co. for Defendant Nos.1 to 5 in Notice of Motion No.1359 of 2011 in Suit No.1005 of 2011 and for Respondent Nos.1 and 2 in Appeal from Order (Stamp) No.14308 of 2011 and Civil Application (Stamp) No.14310 of 2011. Mr.M.U. Pandey for Defendant No.6 and for the Appellants/Applicants in Appeal from Order (Stamp) No.14308 of 2011 and Civil Application (Stamp) No.14310 of 2011. 2 nms1359-11 CORAM : S.J. VAZIFDAR, J. DATE : 7TH JULY, 2011. P.C. :- 1. The plaintiff has filed the suit for an order and decree directing defendant Nos.1 and 2 or any other person found to be the owner of the suit property to convey the same to the plaintiff and defendant No.6 – Sundarvan S/4 Co-operative Housing Society Ltd ; for a declaration that the concessions/relaxations granted by defendant No.7 – B.M.C. dated 5.12.2009 are illegal ; for a declaration that the commencement certificate dated 13.10.2010 and six drawings are illegal, null, void, unforceable and not binding on the plaintiff and for an order directing defendant No.7 to cancel the same. The plaintiff has also sought a permanent injunction restraining defendant Nos.1 to 5 from developing and/or putting up construction on the property or acting in furtherance of or pursuant to the said commencement certificate and drawings. The plaintiff has also sought a permanent order and injunction restraining defendant Nos.1 to 5 from selling, transferring, alienating or creating any third party rights etc. in a proposed building No.5 intended to be constructed on the property and from obstructing the plaintiff from interfering with the plaintiff’s possession in respect of the property. The plaintiff has further sought a permanent order restraining defendant Nos.7 and 8 from granting any approval or sanction in favour of defendant Nos.1 to 5 from carrying out any construction and/or 3 nms1359-11 development of any nature whatsoever upon the suit property. The plaintiff has also sought orders directing defendant Nos.1 to 5 to remove their equipment, construction etc. from the suit property and to repair/rectify the damage caused by them. 2. As many of the material facts are common to the suit and the Appeal from Order, I intend dealing with the Notice of Motion and the Civil Application for interim reliefs by this common order. 3. Defendant Nos.1 and 2 are developers/vendors, who at the relevant time developed various properties including the suit property. They purportedly assigned their business of developing the property to defendant No.3, who in turn granted the development rights to defendant No.4. Defendant Nos.4 and 5 entered into a joint venture for the development of the property. 4. Four buildings which were referred to as S 1, S 2, S 3 and S 4 are constructed on the property. The purchasers of the units in building Nos.S 1, S 2 and S 3 formed and registered the plaintiff society and the purchasers of the units in building No.S 4 formed and registered the 6th defendant society, which is the appellant in the above appeal from order. Occupation certificates were issued in respect of building Nos.S 1 to S 4 on 26.2.1975, 26.11.1975, 17.4.1976 and 22.10.1996 respectively. The agreements with the flat purchasers were entered into prior thereto. According to the plaintiff, the aggregate built up area of the four buildings is 9845.77 sq. mtr. 5. It is necessary to note the provisions of the flat purchasers agreement with the developers/vendors. These agreements were entered 4 nms1359-11 into from time to time. While many of the clauses in the agreements are similar if not the same there are certain differences which are material. 6. The first few agreements were entered into around the year 1975. Recital IV and clauses 10 to 13 and 32 of one of these agreements read as under :- “IV . The vendors are desirous of constructing further buildings as Unit S/4 consisting of ground and ten upper storey sans Unit S/5 consisting of ground and one upper storey upon plans in respect thereof being sanctioned by the Municipal Corporation of Greater Bombay. 10. Nothing contained in this Agreement shall be construed so as to confer upon the Purchaser any right, title or interest of any kind whatsoever into or over the said Property or building or any part thereof or the said flat/shop/parking place and such conferment shall take place only upon a co-operative society or a Limited Company being formed by the Purchasers of different flats/shops in the said Building being Units S/1, S/2, S/3, S/4 and S/5 and on execution of the Conveyance by the Vendors and all other interested parties in favour of such co-operative society or Limited Company hereinafter stated. 11. The Purchaser shall have no claim no claim (save and except in respect of the flat/shop agreed to be purchased by him/her) upon all space, lobbies, terrace, flats, parking spaces, basements etc. and they will remain the property of the Vendor until the whole buildings are transferred to the co-operative society or the incorporated body as hereinafter mentioned but subject to the rights of the Vendors as hereinafter stated. 12. It is hereby expressly agreed that the terraces in the said buildings shall always belong to the Vendors and they shall be entitled to deal with and dispose of the same in such manner as they may deem fit. In the event of the Vendors obtaining permission from the Municipal Corporation for constructing flat/tenement/pent house and/or any other premises on the terraces then the Vendors shall be entitled to dispose of such flats/tenaments/pent house and/or any other premises constructed by them on the terraces together with the 5 nms1359-11 terraces to such persons at such rate and on such terms as the Vendors may deem fit. The Vendors shall be entitled in that event to allot the entire terraces to purchasers of such flats/tenaments/pent houses and/or other premises constructed on the terraces and the terraces shall then be in exclusive possession of the purchasers of such flats/tenaments/pent houses and/or other structures constructed thereon. The Society and/or incorporated body that may be formed by the purchasers of flats shall admit the purchasers of flats/tenaments/pent houses and/or other premises that may be constructed on the terraces as its members and shall allot to such purchasers of flats/tenaments/pent houses and/or other premises constructed on the terraces alongwith the terraces. In the event of any water storage tanks for the buildings being constructed on the terraces the society and/or incorporated body, as the case may be, will be entitled to depute its representative to go to the terraces for repairing tanks during such time as may be mutually agreed upon by the purchasers of alts on the terraces and the society and/or incorporated as the case may be. 13. The Vendors shall have a right until the execution of the conveyance or conveyances in favour of the proposed society or incorporated body to make additions to or put up additional structures and storeys on the buildings being constructed which shall be the property of the Vendors who will be entitled to dispose of the same in such manner as they deem fit PROVIDED THAT so long as it does not in any way affect or prejudice the rights herein granted in favour of the Purchaser in respect of the said flats/shop and the parking place (if any) agreed to be purchased by the Purchaser, the Vendors shall be at liberty to sell assign or otherwise deal with or dispose of their right, title or interest in the said Property or in the said Buildings to be constructed by the Vendors. 32. After the buildings to be constructed by the Vendors as aforesaid, shall have been constructed and ready and fit for occupation and after the society and/or incorporated body as aforesaid is registered and only after all the shops and the flats in the building have been sold and disposed off by the Vendors and the Vendors have received all the dues payable under the terms of the Agreement with various purchasers of shops and the flats and parking spaces, the Vendors shall execute or cause to be executed conveyances in favour of the co-operative society or incorporated body to be formed as hereinbefore provided.” 6 nms1359-11 7. About 208 units have been sold from time to time to various flat purchasers between the period 1974 and 1992. However, the concerned defendants did not take any steps for registration of a society. The purchasers of the units therefore, applied for registration of a society. 8. Mr.Madon, the learned senior counsel appearing on behalf of the plaintiff submitted a plan which indicates the location of the four buildings. In front of the four buildings, is a very small area marked in orange hatched lines, which showed a proposed building/unit No.S 5 consisting of a ground and one upper story referred to in recital IV above. There is a doubt about the correctness of this plan. That however is a dispute which must await a further consideration after examining the records of the B.M.C. 9. I will now refer to a sample agreement, entered into between the flat purchasers and the concerned defendants in the year 1992. The agreement is dated 18.11.1992. Recital II and clause 32 thereof read as under :- “II. The Vendors have already constructed 3 buildings being Units S-I, S-II and S-III on part of the said Plots. The Vendors have started construction of the fourth building known as S-IV Unit as per the plans sanctioned by the Municipal Corporation of Greater Bombay under No.CE/1376/BS II/AP which plans are subject to modifications from time to time by the Vendors as may be required by them or as may be required by the Municipal Corporation of Greater Bombay. The Vendor also intend constructing Fifth Building to be known as S-V on the said Plots. The said building shall consist of Residential Flats and Shops and is shown on Plan Ex.A1 hereto annexed and bounded red. 32. After the building to be constructed by the Vendors as aforesaid, shall have been constructed and ready and fit for occupation and after the society and/or 7 nms1359-11 incorporated body as aforesaid is registered and only after all the shops and the flats in the building have been sold and disposed off by the Vendors and the Vendors have received all the dues payable under the terms of the Agreement with various purchasers of shops and the flats and parking spaces, the Vendors shall execute or cause to be executed conveyances in favour of the co-operative society or incorporated body formed or to be formed as hereinbefore provided.” It is necessary to read the recital and the clause together. As rightly submitted by Mr.Madon, the opening words in clause 32 : “After the building to be constructed by the Vendors as aforesaid” refer to the building in recital II viz. building No.S 5 stated to be consisting of residential flats and shops as shown in the plan annexed to the agreement. This plan, in turn shows building No.S 5 with minuscule dimensions. It is taking advantage of this minuscule depiction of the proposed building No.S 5 that the defendants today after 35 years intend putting up a thirty three story building by utilizing not the original/inherent FSI of the plot but by loading TDR. I will deal with the basis of the right claimed by the defendants in this regard later. 10. The above agreements were in respect of building Nos.S 1, S 2 and S 3. 11. The first defendant had filed an undertaking dated 18.9.1981 with the Registrar of Co-operative Societies, clauses 9 and 13 whereof read as under :- “9. that we have not made and will not make any alterations in the structure of the building or have not constructed and will not construct any additional structure, without the previous consent of all the persons to whom units have been sold out, until the property is conveyed in the name of the society, after is its registration. 8 nms1359-11 13. that we undertake to convey the right, title and interest in the property without making any reservation in our favour whatsoever within the period mentioned in the agreement executed under section 4 of the Maharashtra Ownership Flats (Regulation of promotion of Construction Sale, Management and Transfer) Act, 1963 and if no such period is mentioned in the agreement reformed to above, there after Registration of the Society, and to pass on documents of registration to the Society.” 12. Agreements were thereafter entered into with the flat purchasers in respect of building No.S 4 whose members had registered the society Sundarvan S/4 Co-operative Housing Society Limited i.e. the appellant in the Appeal from Order. It is important to note the terms and conditions of the agreement in respect of the flats in building No.S 4. Recital IV , clauses 7, 10 and 12 of one of the agreements in respect of building No.S 4 dated 9.10.1984 (annexed at page 330 of the Appeal from Order) read as under :- “IV. The Vendors have agreed to sell and the purchaser has agreed to purchase flat No.604 in the building being Unit No.S-IV and parking place No........ as shown on the plan thereof hereto annexed and marked Exhibit “B” and thereon shown in red boundary line (hereinafter called the said flat) 7. The Purchaser has seen the said building plans and specifications in accordance with which the said building is to be constructed and the purchaser agrees to purchase the said flat/shop as herein mentioned which the Vendors have agreed to sell to the purchaser. 10. Nothing contained in this Agreement shall be construed so as to confer upon the purchaser any right, title or interest of any kind whatsoever into or over the said property or building or any part thereof or the said flat/shop/parking place and such conferment shall take place only upon a co-operative society or a Limited Company being formed by the purchasers of different flats/shops in the said building being Units S/1, S/2, S/3 and S/4 and on execution of the Conveyance by the Vendors and all other interested parties in favour of such 9 nms1359-11 co-operative society or limited company as hereinafter stated. 12. It is hereby expressly agreed that the terrace in the said building shall always belong to the Vendors and they shall be entitled to deal with and dispose of the same in such manner as they may deem fit. In the event of the Vendors obtaining permission from the Municipal Corporation for constructing flat/tenement/ pent house and/or any other premises on the terrace then the Vendors shall be entitled to dispose of such flats/tenements/ pent house and/or any other premises constructed by them on the terrace together with the terrace to such persons at such rate and on such terms as the Vendors may deem fit. The Vendors shall be entitled in that event to allot the entire terrace to purchasers of such flats/tenements/ pent house and/or other premises constructed on the terrace and the terrace shall then be in exclusive possession of the purchasers of such flats/tenements/ pent houses and/or any other structures constructed thereon. The Society and/or incorporated body that may be formed by the purchasers of flats shall admit the purchasers of flats/tenements/ pent house and/or other premises that may be constructed on the terrace as its members and shall allot to such purchasers of flats/tenements/ pent house and/or other structures as may have been constructed on the terrace alongwith the terrace. In the event of any water storage tanks for the building being constructed on the terrace the society and/or incorporated body, as the case may be, will be entitled to depute its representatives to go to the terrace for repairing tanks during such time as may be mutually agreed upon by the purchasers of flats on the terrace and the society and/or incorporated body as the case may be. “ Firstly, it is of vital importance to note that at least this sample agreement annexed at page No.330 of the Appeal from Order, does not even refer to building No.S 5. Recital IV thereof, refers to a plan annexed thereto. It is equally important to note that not only is there no reference to the proposed building No.S 5 in this agreement, but clause 10 mentions building Nos.S 1 to S 4, but does not refer to the proposed building No.S 5. Mr.Pandey produced a plan which is annexed at page No.328 of the 10 nms1359-11 appeal from order, which does not even show building No.S 5. 13. There was considerable dispute as regards this plan. The defendants contend that the original plans do show building No.S 5. Defendant Nos.7 and 8 have chosen not to appear at this hearing, although they appeared before the Bombay City Civil Court and filed an affidavit therein. It will be necessary to call for the records of the B.M.C. in view of the fact that there is considerable dispute regarding the sanctioned plans and the lay out plan and the plan that was submitted by the concerned defendants while applying for sanction. 14. These are aspects of vital importance in this entire litigation and unless and until the authenticity of the plans is established, it will not be possible to adjudicate upon the rival contentions as will be evident when I refer to the provisions of the Maharashtra Ownership of Flats Association. Both the parties agree that the entire record of the B.M.C. in regard to the suit property may be called for. I have done so. 15. Mr.Samdani stated that a plan of the year 1973 shows building No.S 5. A plan further shows building No.S 5 to be of 2610.57 sq. yards. Mr.Samdani contended this was a sanctioned plan for building No.S 2 but shows a proposed user in respect of building No.S 5. The defendants however state that this plan does not pertain to the 1972 agreements. There is some confusion about which is the correct sanctioned plan. 16. There is a dispute between the parties as to the exact inherent FSI available on the plot i.e. without taking into consideration the TDR. Mr.Pandey, the learned counsel appearing on behalf of the appellant contended that the FSI has been exhausted. Mr.Madon, the learned senior 11 nms1359-11 counsel appearing on behalf of the plaintiff did not deny that some FSI is available. It appears however, that there is a serious dispute about the FSI which is available other than TDR. Mr.Samdani’s contention that the plaintiff admitted in paragraph 26 of the plaint that the FSI in respect of the property was 10,774.86 sq. mtrs. is not correct. What the plaintiff has pleaded is the developer’s claim. The averment that the developers claimed a particular amount of FSI being available does not constitute an admission by the plaintiff to that effect. 17. The concept of TDR was introduced in the year 1991. An order was issued by the Deputy Secretary, Government of Maharashtra under section 154 of the Maharashtra Regional Town Planning Act, 1966, which reads as under :- “ ORDER According to census of the year 1991, the cities whose population are more than 2 lacs the government has given orders on 20/04/1994 about the concept and regulation regarding TDR and according to orders, the regulation regarding uses of TDR has been included in Development Control Regulations of all these cities. According to such regulation, the plot of land under any reservation has been compensated by giving the TDR benefits. In some of cities, the TDR also has been given under Slum Redevelopment Scheme and in case of Mumbai Municipal Corporation, there is also a provision of giving heritage TDR. The TDR so generated is used by owner/developer or is transferred to prospective buyers. The Government of Maharashtra has observed that the owner/developer does not include the so- called TDR while submitting the proposal to planning authority in beginning while obtaining the approval for his project and the developer/owner form a co-operative society, however, he does not give land conveyance to the society with the constructed premises. Subsequently, owner/developer again submit the proposal for amalgamation with the connected plots for approval including use of TDR of the plot of land in the same layout on which he has constructed the buildings without 12 nms1359-11 obtaining the consent of the co-operative society so formed by the owner/developer and he then constructs high-rise building and hence the personal rights of the members of the co-operative society are affected and accordingly, Government of Maharashtra is issuing the following orders under section 154 of MRTP Act, 1966. Direction 1) While granting the permission for proposed construction in the layout if the owner/developer does not give the land conveyance to the existing co-operative society by conveyance deed, then the benefits of the TDR of the plot of land on which the building is standing shall not be given to owner/developer on remaining or amalgamated plots in that layout. On such proposal, the TDR potential shall be given equivalent to balance open plot on that layout. 2) The above orders will come into effect for implementation from the date of the orders. “ I do not intend basing my order on the the order issued under section 154 of the M.R.T.P. Act. Suffice it to state that it is one of the aspects which must be taken into consideration at the appropriate stage. 18. It is also submitted on behalf of the defendants that the plaintiff’s case was based only upon a violation regarding the provision of recreation ground. This is incorrect. Whereas in paragraphs 11 and 27, a grievance in this regard has been raised, it must be noted that in paragraph 55 of the plaint, the plaintiff has also raised a grievance regarding the play ground. The plaintiff’s grievance that by the proposed construction, the society will be deprived of a major part of the play ground, prima-facie appears justified. According to the plaintiff, a large part of the area in front of the buildings was used as a play ground by the society. The defendants have not admitted the same. Suffice it to state that almost the entire area 13 nms1359-11 claimed to have been used as a play ground and the area shown as a recreation area in one of the plans is now proposed to be utilized in the construction of the building No.S 5. 19. A few facts therefore, if not admitted are establish at least prima-facie, Firstly, there is no detailed lay out plan annexed to any of the agreements. None of the agreements indicate any particulars regarding the proposed building No.S 5. None of the agreements disclosed the extent/quantum of the construction including the number of floors as now proposed to be constructed. None of the agreements referred to the TDR being loaded on the proposed building No.S 5. Some of the agreements do not even refer to building No.S 5. The agreements wherein the plans are annexed, indicate building No.S 5 to be of such minuscule proportions that it could never be imagine by any one that a building of the nature now proposed to be constructed was intended to be constructed.