-)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8931 of 2000 -------------------------------------------------------------- CENTRE POINT WELFARE ASSOCIATION Versus NITA INTERNATIONAL -------------------------------------------------------------- Appearance: MR AJ PATEL WITH MR SA DESAI for Petitioner MR DD VYAS of M/S.VYAS ASSOCIATES for Respondent No. 1 MR AMIT M PANCHAL for Respondent No. 2 -------------------------------------------------------------- WITH SPECIAL CIVIL APPLICATION No 8781 of 2000 -------------------------------------------------------------- NITA INTERNATIONAL Versus AHMEDABAD MUNICIPAL CORPN -------------------------------------------------------------- Appearance: MR DD VYAS of M/S.VYAS ASSOCIATES for Petitioner MR AMIT M PANCHAL for Respondent No. 1 -------------------------------------------------------------- WITH SPECIAL CIVIL APPLICATION No 8553 of 2000 -------------------------------------------------------------- NITA INTERNATIONAL Versus AMC -------------------------------------------------------------- Appearance: MR DD VYAS of M/S.VYAS ASSOCIATES for Petitioner MR AMIT M PANCHAL for Respondent No. 1 MR MC BHATT for Respondent No.2 -------------------------------------------------------- WITH SPECIAL CIVIL APPLICATION No 8930 of 2000 -------------------------------------------------------------- NIJHAWAN TRAVELS PVT LTD GSA OF BRITISH AIRWAYS Versus NITA INTERNATIONAL -------------------------------------------------------------- Appearance: MR PC KAVINA for Petitioner MR DD VYAS for respondent No.1 MR A.M. PANCHAL for the respondent No.2 -------------------------------------------------------- For Approval and Signature: Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE RAVI R. TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO CORAM : MR.JUSTICE B.C.PATEL and MR.JUSTICE RAVI R. TRIPATHI Date of decision: 08/03/2001 C.A.V. JUDGEMENT (Per : MR.JUSTICE B.C.PATEL) #. Special Civil Application No. 8931 of 2000 has been filed by Centre Point Welfare Association. S.C.As. No. 8553 of 2000 and 8781 of 2000 have been filed by the Nita International. Spl. C.A. No.8930 of 2000 has been filed by Nijhawan Travels Pvt. Ltd., occupier of shops No. 54 and 48. #. On 17/8/2000 it was stated before the Court by the learned counsel appearing for the Centre Point Welfare Association- occupiers, (hereinafter referred to as "Association" or "Occupiers") that all the 4 complexes i.e. A, B, C and D shall not be used for the purpose other than residence and they shall discontinue the use as office complex by mid-night of Sunday - 20/8/2000. #. On 1/9/2000 the Court passed an order in Civil Application No. 7851 of 2000 to the effect that the matter is already pending before the Apex Court and hence the Court is not in a position to pass any order more particularly when the cognizance is already taken by the Apex Court. #. S.C.A. No. 8781 of 2000 was filed by Nita International for quashing and setting aside the notice dated 20/7/2000 u/S. 260 (1) of the Bombay Provincial Municipal Corporations Act (for short 'the BPMC Act') and notice u/S. 260 (2) of the BPMC Act dated 5/8/2000. It was also prayed that the respondent Corporation should seal the shops and offices in Centre Point since the same are being used without Building Use permission (hereinafter referred to as "B.U. Permission") and the petitioner requested to direct the Ahmedabad Municipal Corporation (for short "Corporation") to remove the shops from the cellar as the shops were constructed against approved plan and to see that the space is made available for the purpose of parking. The petitioner also prayed for a direction to the Corporation to provide fire safety measures as the developer/builder has not provided. #. The Division Bench heard the matters and considered the submissions made by the learned counsel for the petitioners - occupiers - shop keepers that they were not only cheated but were defrauded; that the builder had acted in breach of the provisions contained in the law and therefore, they should not be made to suffer. The Court considering the decision of the Apex Court in the case of MANJU BHATIA V/S. NEW DELHI MUNICIPAL COUNCIL AND ANR. (1997) 6 S.C.C. 370 and particularly para. 12, of the judgment, issued notice to the builder firm and also its partners (hereinafter referred to as "Builder"). In response to the notices, the Builder M/s. Hasmukh Shah and its partners Mr. Hasmukh Shah and Mr. Upendra Shah appeared before the Court. #. Before considering the submissions made by the learned counsel for the Builder, it would be just and proper to consider the background. The Court found that the use of the building was not in conformity with the zoning regulations in so far as the building in question is concerned. The plans were submitted for the use of the construction of the building for the purpose of residence only with certain number of shops to fulfil the need of the persons who may occupy the building or the residents of nearby areas. The tower in question was erected contrary to the building regulations. Instead of the use for the purpose of the residence, the tower in question was being used for the purpose of office complex. The Court pointed out that such use will cause nuisance and/or annoyance to the other genuine occupiers of the building. People who have purchased the property for the purpose of residence, if were told that part of the building is to be used for the purpose other than the residence, then they may not have purchased a flat in such a tower as the buyers may think that they will not get peace on account of the nuisance and annoyance which is a necessary consequence of commercial use. When people are buying the property with the bonafide belief that they will have a good residential complex and without disturbance of others they will be in a position to enjoy a housing accommodation, they must be permitted to enjoy the property for the purpose for which they have spent. The Court found that from the inception several illegalities were committed and the officers of the Corporation had not taken any measures to stop the same. #. The Court noticed that in the cellar and on the ground floor the Builder instead of providing common amenities and parking, converted the area of common amenities and parking into shops and disposed of as such. Learned counsel appearing for the petitioners - occupiers pointed out that the documents were stereo-typed, and, there was no mention about the permission for construction of shops in large number, being granted by the Corporation It seems that they were persuaded to buy the shops. The shops constructed in the cellar as well as on the ground floor were in contravention of the provisions of the building regulations. Before the Court the fact that the construction of shops being shops nos. 1 to 27 in the cellar and shops nos. 28, 29, 30, 31, 44, 45, 46 and 48 on the ground floor were not in accordance with the building regulations, and thus the construction was unauthorised, was not disputed. It was pointed out in the judgment that common amenities were required to be provided in the building. The area meant for common amenities cannot be used for any other purpose, i.e. for shops or parking. The Court pointed out that the common amenities will provide an opportunity to the occupiers to live in real society. The Court expressed the opinion that when the construction is not in conformity with the regulations it cannot be permitted to stand and should be removed without fail. The Court also noted that for all these years the residents of this building could not raise their voice though the building was used for the purpose other than for which the plans were submitted and approved. The Court also found that the Builder constructed a wall and boundary with a view to facilitate shop keepers to carry on business in the place which was meant for parking and/or common amenities. The Builder charged huge amount for this. The Court was of the view that the breach cannot be pardoned and cannot be permitted to continue. #. The Court also noted that the 9th floor of the building was not approved by the Corporation. The copies of the plans were placed before the Court which were signed by the office bearers of Amichand Park Cooperative Housing Society Limited (hereinafter referred to as 'society') as the owner, Shri R.H. Patel as Engineer, Shri Jayesh J. Desai as Structural Engineer, and Shri Patel R.H. as Clerk of Works. From the plans, it was clear that the same were signed by one Mr. Upendra Shah as owner and as an office bearer of the society. It is clear from the judgment that it was submitted before the Court that at the relevant time he was the person having control over Amichand Park Coop. Housing Society Ltd. The grievance was made before the Court by learned Advocate for Association Mr. Patel that even the day on which the judgment was delivered, the administration was not handed over by said Upendra Shah to the members of the Cooperative Housing Society, who are actually occupying the building for residential purpose. The grievance was made that though they are the best persons to look after the building, its administration is yet not handed over to them and control rest with the said Upendra Shah, a builder and a partner of M/s. Hasmukh Shah. #. The Court pointed out that the plan (sheet no.8) shows the height of the tower in question. In all 8 floors were to be constructed. The plan shows that there is 3 mtrs. height of cellar. The cellar plinth is of 2 mtrs. Thereafter, there are 8 floors each consisting of 2.60 mtrs. The height of the building as indicated in the plan was 30 mtrs. without taking into consideration the height of parapet wall on the terrace. The Court pointed out that as per the building regulations it was not permissible to erect a building having more than 30 mtrs. height. The plan also shows that the building with the height of 30 mtrs., was sanctioned by the Corporation. There was no sanction to erect or construct 9th floor. The Corporation granted permission being permission no. 28 dated 12/8/1992, which is clear from the stamp put on the plans. The Court was convinced that construction was not in accordance with the approved plans but was in violation of building regulations and bye-laws. It was clear from the documentary evidence placed on record that:- (i) construction of shops in the cellar was in contravention of the provisions contained in the building bye-laws, regulations, etc. (ii) Shops on the ground floor bearing nos. 28, 29, 30, 31, 44, 45, 46 and 48 were not part of the original plan and were constructed not in accordance with the regulations and bye-laws and also plans which were submitted before the Municipal Corporation and approved by the Corporation. These Shops were constructed without any sanction. (iii) That the 9th floor which was constructed in the tower in question was in breach of building regulations and no permission whatsoever could have been granted by the Commissioner. Though no permission was granted, the builder erected 9th floor. ##. The construction was admittedly therefore in breach of the building regulations. By detailed judgment considering the submissions made by the learned counsel the Court arrived at the conclusion aforesaid. The Corporation demolished particular part of the building which was contrary to the building regulations. ##. Ilyias Chataiwala, member of the association i.e. Centre Point Welfare Association has filed an affidavit interalia pointing out that the tower no.1 in Centre Point, the building in question has been constructed by the builder / organisers / Contractor M/s. Hasmukh Shah in violation of the provisions of the B.P.M.C. Act and the building regulations framed thereunder consciously with a view to dupe the members of the association. It is specifically averred in the affidavit that it has been disclosed during the proceedings before this Court that the builder firm had constructed the shops in the area which was earmarked for the purpose of parking and for providing common amenities for the benefit of the occupiers of the tower. It is also averred that the entire 9th floor has been constructed without even getting the plans approved for the said floor from the Corporation. He has submitted that the plans were submitted in 1984. The plans were approved in the year 1992. Though there was no reference to construction of 9th floor in the plan the builder has constructed 9th floor. ##. In the affidavit, it is further pointed out that the contractor constructed 27 shops in the lower plaza and 8 shops in the upper plaza in contravention of the building regulations. The Corporation demolished the shops which were unauthorisedly constructed. The persons who purchased the shops did not know at the relevant time that the contractor/builder constructed the said shops in violation of the building regulations. The persons purchased the shops in question in good faith from the builder firm and they signed the agreement. According to the deponent on behalf of the association, the agreements are illegal and the signatures were obtained on the information furnished by the builder that the construction of the entire building was strictly in accordance with law. The shop keepers purchased the shops and established their business by investing huge amounts. In view of the demolition of the shops they are now on the streets and have lost their source of income. According to the purchaser of such shops, a person who has committed wrong is enjoying the fruits of his misdeeds. It is further submitted in the affidavit that it would be practically impossible for shop keepers to find out suitable premises elsewhere in the same area or locality to establish a new business or business in a different locality will take certain number of years to get the business established. ##. The deponent has further stated that the builder passed on the entire tower no.1 as office complex and in view of the fact that it is in residential locality, they had to convert the premises into residence though they paid price for having their offices. Some have converted the office as residence & some of them are in the process of converting the same into residence. It is averred in para 4 that the loss is suffered on account of the fact that the builder has suppressed true facts from the shop keepers as regards the irregularities committed by it in the construction of the building. On behalf of the Association, it is submitted that had the builder/developer disclosed true facts about irregularities, illegalities and unauthorised construction, the shopkeepers and office owners in the building would not have parted with money for shops and offices. The deponent has stated that the builder cheated the members of the Association and committed breach of trust. It is stated that the persons are entitled to claim damages from the builder for the losses suffered by them. ##. The deponent has referred about the fact that the Building Use permission was never obtained; that the fire safety system was not provided in the building in question. It is further pointed out that the builder has not provided the fire lift though he was under an obligation to provide it under the agreement. It is further averred that the builder was under an obligation to provide basic amenities, water, electricity, fire safety, fire lift, lift, and parking in the building. It is further averred that it was the duty of the builder to provide common amenities in the building at the place earmarked for that purpose in the plans. ##. The deponent has referred Section 57 of the Bombay Land Revenue Code with a view to point out that without paying conversion charge to the State Government, the builder has disposed of the property in violation of the provisions contained in the Bombay Land Revenue Code. It was his obligation to pay these charges to the Government. ##. Excluding 9th floor, total area of demolished shops comes to 7419 sq.ft and considering the present market value at the rate of Rs.3500/- per sq.ft. loss suffered by the shop keepers comes to Rs.2,59,66,500/-. Considering the amount of furniture and fixtures at the rate of Rs.750/per sq.ft. they have suffered a loss to the tune of Rs.55,64,250/-. They have indicated goodwill at the rate of Rs.750/- per sq.ft. which comes to Rs.55,64,250/-. Considering the Misc. Expenses i.e. electric connection, telephone etc. at the rate of Rs.200/- per sq.ft. comes to Rs.14,83,800/-. The Association has also pointed out that the cost of the second lift, fire safety equipment, borewell etc. comes to Rs.50 lacs and thus total sum of Rs.3,80,14,550/- is the approximate damage suffered by the members of the Association. Over and above conversion charges from the residence to commercial or the difference between market rate for residence and commercial premises is to be paid by the builder. It is contended that the members of the Association purchased the building for their offices. It is for the builder/developer who is engaged in the business of building construction to know that the area is in "residential zone" and the premises could be utilised only for the permissible uses in a predominantly residential zone and no part of the building can be used for the purpose of office complex etc. yet the builder has asked the members to purchase for their offices. It was his duty not to offer the building for office purpose, yet with a view to earn wrongful gain he has put others to wrongful loss and not only the shop keepers whose shops are demolished but even the present occupiers of the building who purchased offices in the building for the purpose of offices are suffering as they cannot make use of the building for office purpose. ##. On behalf of the Association, Shri Pranlal Kalaria has also filed an affidavit on 21.9.2000 pointing out the breaches committed by the builder. It is pointed out in para 5 that the brochure clearly reveals that the shops were proposed to be constructed in the lower plaza. These details were misleading. Infact, the portion below the lower plaza was required for the purpose of parking as emerged during the proceedings and according to the plans sanctioned by the Ahmedabad Municipal Corporation. He categorically stated that all the members were told that the plans as indicated in the brochure were approved by the Municipal Corporation. He has specifically stated that what was shown to the members at the time of purchase of individual units was infact the brochure and not the approved plans. Zerox copy of the brochure is produced on record. He has also pointed out that the agreements were entered into with the builder during the period between 1988 and 90 i.e. much before the plans were approved by the Municipal Corporation. According to the deponent there was no question of plans being approved and being shown to the members before buying the property as the plans were approved much after completion of construction. The deponent Shri Pranlal has stated that the builder has come out with false statements on oath with a view to suit his purpose and that is further demonstrated by the fact that the construction of the 9th floor in the tower in question was never under contemplation in any of the plan submitted to the Corporation. The deponent Shri Pranlal has stated that "I say that infact no plans were shown to any of the members of the association and infact no plan contemplating the construction of the 9th floor in this plan exists today.". In view of this clear picture, Shri Pranlal has stated that the builder has made false statements on oath. It is clearly stated by Shri Pranlal that in the year 1989 the builder commenced the construction of tower no.1 as commercial building without approval of the plans as it now emerges. In the agreement, it is clearly stated that the members were allotted either shops or office premises. Some have not entered into any agreement but they have been given allotment letters and in the said allotment letters, it is clearly indicated that they were allotted commercial units. Thus, contrary to the building regulations, in a residential zone, commercial complex was constructed and units were allotted. The builder has never sold or allotted the premises in question as residential units to any of the members of the association. From the purchasers about 90% of the amount was taken prior to handing over possession. In Para 9, Shri Pranlal has pointed out that as per Item No. VIII of clause 5 of the xerox copy of the agreement, fraction of the purchase price was required to be paid against possession of the unit. As per the said clause only 10% of the total purchase price was required to be paid against possession. It is also indicated in the affidavit by Shri Pranlal that the modus operandi adopted by the builder was with an intention of placing a member of the Association who does not pay the balance amount at the time of taking over possession in an embarrassing position, in as much as if he does not pay the amount or if he refuses to sign the agreement, he would not be given possession of the unit even though he might have paid substantial amount towards purchase price and he would also not be refunded the amount which he might have paid till that date. Such amount was to be paid only after re-sale of the property. According to the Association, the members were thus left with no alternative but to sign the agreement irrespective of the recitals being prejudice to their interest. It is specifically averred by Shri Pranlal that the builder has placed himself in a dominating position as against the servient position of the purchaser and the members were left with no alterative but to sign the agreement irrespective of the recitals being prejudicial to their interest. Shri Pranlal has also referred about goodwill & huge investment made by them in the shops and offices and has prayed to direct the builder to pay the amount by way of damages. The Association has also made a grievance that the builder has come out with a case that the builder entered into an agreement with Amichand Park Cooperative Society but the details of such agreements are not made known to the Association. Even records of the society have not been handed over to the Association by the builder. All the members are not given share certificates. Apart from disposing the space meant for parking and common amenities by construction of unauthorised shops, the Association has pointed out that the terrace was meant for the welfare of the Association/Society. The terrace belongs to the society. The terrace contained drainage lines, electric lines and telephone cables. In flagrant violation of rules and in breach of law, the builder has assigned the rights in favour of Nita International with a view to earn huge profit. ##. It is also pointed out by the Association in the affidavit that the builder has laid much stress on the fact that the allottees/purchasers of the shop have taken possession. It is an eye wash. The buyers were required to pay to the builder amounts towards purchase price from time to time. It is pointed out in Para 21 that the builder handed over the possession to the concerned allottee. Clause XIX which is reproduced in the affidavit of the builder if read, it is evident that it was stated that "the entire project including the office complex is not yet completed". Thus it is clear that in residential zone, office complex was constructed. This is not permissible and Corporation cannot permit the use of buildings for any other purpose than indicated in the predominantly residential