*1* nms.2629.10.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2629 OF 2010 IN SUIT NO.2534 OF 2010 S.R.Patel and others. ..Plaintiffs -Versus- Madanlal Gupta and others. ..Defendants .......... Shailesh Shah i/b Niranjan Jagtap & Company, for the Plaintiffs. P.K.Samdani, Senior Counsel a/w H.N.Thakore i/b Thakore Jariwala & Associates, for the Defendants Nos.1 to 3. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 26th October, 2010. P.C. 1 This Notice of Motion is moved by the Plaintiffs seeking interim reliefs in the suit filed for declaration that the Plaintiffs and the Defendant No.6 are the owners of the suit property more particularly described in Exhibit-A to the plaint and the building standing thereon known as “Vikas Villa” with all benefits and rights attached to the property including the right to put up additional and further construction, use of TDR benefits, future FSI etc.. There are further reliefs claimed including a decree against the Defendant Nos.1 to 3, their servants and agents to handover vacant and peaceful possession of the portion of the suit property delineated in Exhibit-C to the plaint. It is in furtherance of such reliefs that the Notice of Motion has been moved. 2 Mr.Shah, learned counsel appearing on behalf of the Plaintiffs, at this stage, is pressing interim reliefs in terms of prayer clause *2* nms.2629.10.sxw (b) of the Notice of Motion so also prayer clause (di). 3 In the submission of Mr.Shah, considering the nature of declarations and final reliefs, it would not be proper to permit the Defendant Nos.1 to 3 to carry on any construction activity at site. Mr.Shah submits that the suit is filed on the basis that as trustees of private family trust, the Defendant Nos.1 and 2 acquired the rights in the suit property from one M/s Bajaj Trading Company by a deed of conveyance dated 21.12.1989. Thereafter, the Defendant Nos.1 and 2 granted lease of a portion admeasuring 335 sq.mtrs. out of the plot bearing old CTS No. 567/19 admeasuring 497.90 sq.mtrs along with structure standing thereon to British Airways by a Deed of Lease dated 28.10.1994. Mr.Shah submits that the Defendant Nos.1 and 2 through the Defendant No.3 submitted plans to the Defendant No.4 Corporation for construction of a building comprising of stilts plus six floors on the portion of the property adjacent to the portion leased to British Airways. The plans were approved on 07.12.1997 by the Defendant No.4 Corporation and thereafter, construction was commenced and completed sometime in July, 1999. 4 Mr.Shah submits that under the declaration dated 05.03.1998, the Defendant Nos.1 to 3 irrevocably dedicated the property to the condominium of apartment ownership under the provisions of the Maharashtra Apartment Ownership Act, 1970 and that declaration is at Exhibit-E to the plaint and it is registered document. Mr.Shah submits that this declaration records that each of the apartment owners should obtain a particular exclusive property right and undivided interest in the common areas and facilities of the proposed building. Inviting my attention to the declaration at some length, Mr.Shah submits that the same would indicate that when individual agreements/deeds were *3* nms.2629.10.sxw executed with the Plaintiffs and the apartment purchasers, what was represented by the Defendant Nos.1 to 3 is that they would convey all rights, title and interest to this condominium including to enjoy all facilities. Mr.Shah submits that when building was completed, occupation certificate was issued and possession was handed over of the building known “Vikas Villa” to the Plaintiffs. Inviting my attention to paragraphs Nos.7 and 8 of the plaint, Mr.Shah submits that the Plaintiffs have now discovered that the Defendant Nos.1 to 3 have demolished the structure that was leased to British Airways. The information that was provided under the Right to Information Act reveals that the Defendant Nos.1 to 3 by holding out themselves as owners of the suit property submitted plans to the Defendant Nos.4 and 5 for alleged alterations/additions to the part of existing building i.e. “Vikas Villa”. The Plaintiffs were further surprised to know that IOD and CC upto plinth level have also been issued. 5 In such circumstances, the Plaintiffs submit that additional structure on the suit property is nothing but encroachment on the rights of the Plaintiffs under their individual deeds and declaration in their favour. It is in such circumstances, a request was made to the Corporation to issue a stop-work notice, at which point of time, it was further revealed that the Defendant Nos.1 to 3 represented that there is an independent structure which is a separate entity and there is no addition or alteration to the existing building. The correspondence ensued but finding that the Defendant Nos.1 to 3 continued their illegal and unauthorized acts, this suit is filed. 6 Mr.Shah submits that on the earlier occasion when it was brought to the notice of this Court that the building is adjoining to the common wall, the Court appointed Architect to inspect the site and submit a report so that it will then be in a position to ascertain the exact *4* nms.2629.10.sxw construction. Mr.Shah submits that the Architect submitted a report which has been objected by both sides. Mr.Shah submits that the construction has been halted pursuant to the order passed by this Court while appointing an independent Architect and that order in addition to the prayers of this Notice of Motion, be granted. Mr.Shah submits that prima facie case is made out on the basis of the documents annexed to the plaint. Mr.Shah submits that the nature of lease would show that the lessor namely M/s Vikas Developer through the Defendant Nos.1 and 2 had agreed that any construction to be raised by the lessor shall exclude the FSI of the demolished premises including the existing structure. However, no reliance can be placed on other clauses of the lease deed as that would mean that the Maharashtra Apartment Ownership Act is defeated. Mr.Shah invited my attention to this declaration and particularly the portion wherein under the first clause a declaration has been given by the grantor that the lease in respect of 335 sq.mtrs. in favour of British Airways is of the open area with the structure thereon and without any right to increase further FSI and the balance FSI of the plot area of 335 sq.mtrs has already been used in the building being constructed next door by the lessors and therefore, a limited right was given to British Airways. Further, British Airways has been proceeded against by the Defendant Nos.1 to 3 in the Court of Small Causes at Mumbai, however, there was a consent decree obtained and under the consent decree, the Defendant Nos.1 to 3 have claimed the land back which is also prima facie illegal. All that the Defendant Nos.1 to 3 could have done was to collect rent and that right alone survives in their favour. The land cannot revert back to the Defendant Nos.1 to 3 once the property is conveyed in its entirety in favour of the Plaintiffs. Mr.Shah submits that in any event this Court is yet to consider rival rights based on the contentions raised but once the *5* nms.2629.10.sxw Defendant Nos.1 to 3’s rights are uncertain and undecided they should not be allowed to carry on construction activity or else entire suit would become infructuous. Balance of convenience is in favour of the condominium and apartment owners or else they would face consequences of a construction which is likely to affect easementary right particularly free flow of air and light. For all these reasons, irreparable loss will be caused to the Plaintiffs. Therefore, this Notice of Motion be made absolute. 7 Mr.Samdani, learned Senior Counsel appearing on behalf of the Defendant Nos.1 to 3, submits that the Plaintiffs cannot object to the construction by the Defendant Nos.1 to 3. The Defendant Nos.1 to 3 retained their rights as lessor of the property which is leased out to British Airways. The land has rightly reverted back to the lessor namely the Defendant Nos.1 to 3. Mr.Samdani submits that the proposed construction is on the leased area which has reverted back to the Defendant Nos.1 to 3, no FSI or any right pertaining to the structure occupied by the Plaintiffs and the area conveyed will be affected. This Court should proceed on the basis of the statements made on oath and allow the construction activities at site. 8 Mr.Samdani has invited my attention to the affidavit in reply and submitted that the proposed structure is ground plus two floors and in paragraph No.12 of the affidavit which has been filed on 23.10.2010, it has been clarified that the building is being constructed in compliance with all the required open space requirement on three sides and in accordance with law then prevailing. It is stated that there is no addition or alteration to the existing stilts plus six upper floors, hence, the question of obtaining any consent from the Plaintiffs does not arise. There is no possibility of blocking light and ventilation to the Plaintiffs’ structure. *6* nms.2629.10.sxw 9 My attention is also invited to the Architect’s report and it is contended that it has been clarified that the construction proposed by the Defendant Nos.1 to 3 will not affect any right of the Plaintiffs. Mr.Samdani has invited my attention to the individual agreements and submitted that the declaration must be read in the light of these individual agreements. Under the individual agreements, the apartment owners are specifically informed that the entitlement is in relation to the property which is more particularly described in the first and second schedule to the individual agreements. Mr.Samdani has also invited my attention to the letter dated 23.05.2008, copy of which is at Annexure-J to the paper book (page No. 119), wherein the Defendant No.3 M/s Vikas Developers has clarified that the flats have been already handed over and they have nothing to do with the building “Vikas Villa”. 10 Mr.Samdani submits that the Defendant Nos.1 to 3 are not reducing Plaintiffs’ entitlement under these individual agreements and what they are developing and constructing is the portion of 335 sq.mtrs. which forms a part of the lease in favour of British Airways. It is that area which is being utilized for construction and nothing will affect the Plaintiffs claim, adversely. For these reasons, he submits that this Court should not pass any restraint order against construction but allow the activity to be carried on. There is no apprehension because what the Defendant Nos.1 to 3 are constructing is the structure of ground plus two upper floors that is going to be used for residence and not for commercial purpose. In such circumstances, this Court should vacate ad-interim order and particularly, in the light of the Architect’s report. 11 With the assistance of the learned counsel appearing for the parties, I have perused the plaint and annexures thereo, so also, the motion and affidavits on record. With their consent, I am proceeding to *7* nms.2629.10.sxw dispose of the motion finally. 12 The Plaintiffs claim to be individual owners of the respective apartments in the building standing on the original CTS Nos.567/15, 567/16, 567/17 and 567/19 admeasuring 1513.27 sq.yds. equivalent to 1267.28 sq.mtrs.. A sketch map and proper description of the suit property is at Annexure-A. Annexure-B shows the construction that is already carried out and proposed by the Defendant Nos.1 to 3. 13 It is stated that the declaration dated 05.03.1998 specifically records that each of the apartment owners would obtain a particular exclusive right and undivided interest in the common areas and facilities of the proposed building. 14 My attention is invited to the declaration which states about the property that is described above. The grantors i.e. Defendant Nos.1 to 3 are constructing the building known as “Vikas Villa” and that is being constructed in the manner set out in third clause which reads thus:- “The said building is being constructed on stilts and it has the first floor (above stilts) and five upper floors comprising of several residential units. All the units from the first floor to the sixth floor are capable of individual utilisation on account of having their own exist to a common area and use of common amenities and facilities of the building and the said units are proposed to be sold to various owners thereof, each owner obtaining a particular exclusive property right thereto and each unit constituting a heritable and transferable immovable property within the meaning of any law for the time being enforce and also undivided interest in the common areas and facilities of the building as listed in this Declaration necessary for adequate use and enjoyment and hereinafter referred to as THE COMMON AREA and facilities, all in accordance with The Maharashtra Apartment Ownership Act, 1970.” 15 Clause fourth describes the building’s total area and clause *8* nms.2629.10.sxw fifth sets out what the condominium consists of. It would be then advantageous to refer to what would be meant by the terms “common areas and facilities”, they are set out on internal page No.11 of this declaration. The restricted common areas are at internal page No.12 and Clause sixth states that the right, title and interest of each owner of a residential unit in the general common area and common facilities and their proportionate share in the profits and common expenses in the said general common areas and the facilities as well as the proportionate representation for voting purposes in the meeting of the association is based on the proportionate area of each residential unit to the total area of all residential units. Thereafter, clauses-7th, 8th and 9th refer extensively to what would be conveyed to the apartment owners. Clause-10th states that the plan of apartment ownership as constituted is subject to the provisions of the Maharashtra Flat Ownership Act, 1970 so that the units of the first floor (above stilts) and five upper floors may be conveyed and registered as individual properties capable of independent use on account of each having its own exit to the common areas and facilities as enlisted in the said clause. In clauses-14th and 15th, it is stated that the percentage of undivided interest in general and/or restricted common areas and facilities shall remain undivided and no owner shall have partition and division thereof. This entitlement shall not be changed except by unanimous decision of the apartment owners. Clause-15th reads as under:- “That the undivided interest in the general and/or restricted common areas and facilities shall not be separated from the common units to which it appertains and shall be deemed conveyed or encumbered with the units even though such interest is not expressly mentioned or described in the conveyance or any other instrument.” 16 Thereafter, further clauses appear and in clause-24th it is *9* nms.2629.10.sxw clarified that terrace of the building shall belong to the grantor and that they shall exclusively be entitled to deal with and dispose of the same in such a manner as they may deem fit and in the event of the grantor obtaining permission from the Corporation for constructing the premises on the terrace, the grantor shall be entitled to dispose of such premises constructed by them on the terrace together with the terrace. In the bye- laws of “Vikas Villa” there are several clauses under Chapter-VI which deal with obligations of the apartment owners and the deed of apartment with individual purchaser/ apartment owner and clarifies the aspect as to what would come to the condominium. 17 My attention is also invited to the opinion of the Architect appointed by the Plaintiffs, copy of which is at page No.135 and the opinion of the Architect appointed by the Court, so also, the letter by the Corporation addressed to the Advocate for Plaintiffs. 18 In the correspondence preceding the suit, the Defendant Nos. 1 to 3 have stated that it is not true to say that the plot No.10 was admeasuring 335 sq.mtrs.. The size is of 497.90 sq.mtrs.. The building having built-up area of 122.72 sq.mtrs. along with appurtenant land admeasuring 335 sq.mtrs. was leased to British Airways. The balance of FSI has been used for adjoining building. British Airways is in use and occupation as a tenant of this Plot No.10 (CTS No.567/19) admeasuring 497 sq.mtrs. together with structure since 1962. It is stated in paragraph No.2 of this letter dated 21.06.2010, copy of which is at Exhibit-R, that the plot No.10 got amalgamated with other plots and M/s Vikas Developer and British Airways arrived at an arrangement, as per which, open plot having area of 335 sq.mtrs. along with structure was leased out to British Airways under the lease deed dated 28.10.1994 for 99 years and they were put in possession of the same. This portion has independent water *10* nms.2629.10.sxw connection, assessment, electric meter, entry to the premises. The leased out plot is a part of amalgamated plot having new CTS No.567/15 (old CTS No.567/15, 567/16, 567/17 and 567/19). The amalgamation was made effective after approval by the Collector, Bandra Sub-District in the year 1996 and then P.R.card for single holding having area of 1278.40 sq.mtrs. was issued. The latest P.R.Card shows area of CTS No. 567/15 as 1278.40 sq.mtrs. and M/s Vikas Developers as owner. This letter is addressed by the Advocate for the Defendant No.1 who is trustee of Madanlal Gupta Family Trust and claiming to be sole proprietor of M/s Vikas Developers. His Advocate states that Madanlal Gupta has not leased the plot in favour of “Vikas Villa”. The declaration dated 05.03.1998 is then referred to and it is specifically stated that the declaration was a part of individual Deed of Apartment as Annexure-B and also mentioned in third schedule. At the same time it is contended that the declaration is subject to lease right of British Airways and ownership right of Madanlal Gupta. It is stated that M/s Vikas Developers have become absolute owner of portion of the land having area 335 sq.mtrs. with structure thereon and it is not correct to state that M/s Vikas Developers have illegally undertaken the work of demolition of independent structure previously leased out to British Airways. It is then stated that the said portion is in possession of M/s Vikas Developers and not with the condominium of Vikas Villa. In this regard, P.R. card is relied upon. 19 In my view from reading of the material produced on record, it is prima facie apparent that the controversy is with regard to the entitlement of the condominium and whether any right remained in the land or benefits attached thereto in favour of the Defendant Nos.1 to 3. When this letter had been addressed to the Plaintiffs’ Advocate, they have by their rejoinder clarified that the building having a built-up area of *11* nms.2629.10.sxw 122.72 sq.mtrs. along with appurtenant land admeasuring 335 sq.mtrs. was leased to British Airways and that the balance of FSI has been used for adjoining building. They have clarified that once the leased out plot is part of the amalgamated plot and the amalgamation is effective then there is no question of M/s Vikas Developers remaining as owners and the condominium not getting any title. The appointment of the independent Architect is to the limited extent to show as to whether the structure is addition or alteration as claimed in the IOD and CC or it is an independent structure. Further whether it is obstructing free flow of light and air to the Plaintiffs’ property. However, the core question is whether what has been conveyed to the condominium is the entire land together with benefits attached thereto or whether any rights covered by the lease in favour of British Airways are retained by the Defendant Nos.1 to 3. In other words, can the declaration and individual agreements setting out the entitlement of the Plaintiffs exclude the portion of the leased area or not. That is the controversy which will have to be gone into and in my view until that is resolved, it will not be proper to permit the Defendant Nos.1 to 3 to carry out construction activity at site. There is substance in the contention of Mr.Shah, learned counsel appearing on behalf of the Plaintiffs, that the documents on record are conveying the intent of the parties that the condominium is conferred all rights not only in independent apartments but also in the common and restricted areas. Once they are delineated and demarcated on documents and their particulars are set out in the schedule, then, permitting the Defendant Nos.1 to 3 to go ahead and completing the construction of their proposed structure would not be proper. There is dispute as to whether the approved plan and amended plan correctly denote the area of the leased land or whether there is something which could be raising doubts with *12* nms.2629.10.sxw regard to the entitlement of the Defendant Nos.1 to 3. The affidavit filed in reply and particularly paragraph Nos.9 to 10 thereof would indicate that there is further dispute as to whether the construction that is proposed by the Defendant Nos.1 to 3 meets the requirement of the Development Control Regulation or not. Thirdly, the issue raised that whether the Defendant Nos.1 to 3 can claim reversionary rights in the lease when the property is conveyed to the condominium, requires further consideration and it is not possible to brush-aside the same only by assertions in the affidavit in reply. 20 Having regard to the provisions of the Maharashtra Apartment Ownership Act, 1970 and bearing in mind the contents of the further affidavit, to my mind, if the construction is allowed that would create further complications. It is not possible to accept the stand of the Defendant Nos.1 to 3, more so, when there are specific denials by the Plaintiffs. In this behalf, reliance placed by the Defendant Nos.1 to 3 on the deed of declaration and particularly the clause-3 in the schedule at page No.3, would show that there is serious issue as to whether this clause can be construed as a stand alone or isolated or the declaration must be read as a whole. Further if this was not the case then the Defendant Nos.1 to 3 were not required to clarify that the total built-up area mentioned in the declaration is 1265.28 sq.mtrs. and the area constituting residential units is 1135.80 sq.mtrs, thus, difference between the two areas is 129.48 sq.mtrs.. The assertion of the Defendant Nos.1 to 3 that it is implied and understood that the Plaintiffs do not have any right on the lease hold land, itself raises important and triable issue. In such circumstances, it will not be possible to vacate the ad-interim order. Instead the Notice of Motion needs to be allowed by issuing a proper injunction and directions. *13* nms.2629.10.sxw 21 In the result, Notice of Motion succeeds and it is made absolute in terms of prayer clauses (b) and (di). There will be no order as to costs. 22 At this stage, Mr.Thakore, learned counsel appearing for the Defendant Nos.1 to 3 prays for stay of this order. The Defendant Nos.1 to 3 on their own stopped the construction activities. What the interim order has done is to grant reliefs in terms of the prayers of the Notice of Motion and in furtherance of the statement made at the ad-interim stage, I do not see as to how such an order can be stayed. The stay is refused. 23 Notice of Motion is allowed accordingly. (S.C. Dharmadhikari, J)