wp3512-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3512 OF 2011 Lokgram Co-operative Housing Societies Federation Ltd (Lokfed) .. Petitioner versus M/s.Lok Developers, (Promoter, Builder and Developers) & Ors .. Respondents Mr.E.R.Naik and Namrata Jain for the petitioner. Mr.Jai Chinoi, Sr.Adv a/w Mr.Sanjay Jain a/w Sanjay Kotak & Mr.Kalpesh Mehta a/w D.H.Mehta a/w Tushar Goradia for respondent Nos.1 and 2. CORAM : B.R.GAVAI, J. 5th MAY 2011. P.C.: . The petitioners challenge an order dated 8th April 2011 vide which the learned District Judge, Kalyan in Misc. Appeal No. 25 of 2011 has allowed the application below Exhibit 5. 2 The plaintiffs-petitioners have filed the suit claiming therein that the building “M” which is being constructed by the respondent No.1 is being constructed in violation of provisions of wp3512-11.doc 2 the Maharashtra Ownership of Flats Act (MOFA) in as much as the consent of the petitioners is not obtained. In the said suit an application for temporary injunction under the provisions of Order XXXIX, Rule 1 and Rule 2 was filed by the plaintiffs. The learned trial Court vide the order dated 4th March 2011 has allowed the application. Being aggrieved thereby an appeal is preferred by the respondent Nos.1 and 2 herein. In the said appeal, an application for stay to the order passed by the learned trial Court was filed. The same is allowed. Hence, the present petition. 3 Mr.E.R.Naik, the learned counsel appearing on behalf of the petitioner submits that the learned Appellate Court has grossly erred in granting stay to the order passed by the learned trial Court. He submits that the construction which is being made by the respondent-builders is in contravention of the provisions of MOFA Act. He relies on the judgment of this Court in the case of Madhuvihar Co-operative Housing Society, Mumbai & Ors Vs. Jayantilal Investments, Mumbai & Ors reported in 2011(1) Maharashtra Law Journal, in support of the submission that any subsequent construction without the prior consent of the society wp3512-11.doc 3 is not permissible in law. 4 Mr.Chinoi, the learned senior counsel appearing on behalf of the respondent Nos.1 and 2 on the contrary submits that the building is almost complete and the said respondents have already created third party rights. He submits that taking into consideration the stage of construction the learned Appellate Court has passed the order impugned and, therefore, the same warrants no interference. 5 Upon perusal of the order passed by the Appellate Court so also the photographs produced by the learned counsel for the respondent Nos.1 and 2, it appears that the building is almost complete. In that view of the matter I find that it will not be appropriate to interfere with the order passed by the Appellate Court at this stage. Needless to state that in the event if it is found that construction so made is in contravention of provisions of MOFA Act, the consequences will follow. 6 In that view of the matter, petition is disposed off in the wp3512-11.doc 4 following terms: (1) The learned Appellate Court is directed to dispose off the appeal filed by the present respondent Nos.1 and 2 as expeditiously as possible and in any case within a period of eight weeks from today. (2) It is further made clear that the construction made by the respondent Nos.1 and 2 and any third party rights created would be subject to result of the suit filed by the petitioners-plaintiffs. (3) It is further directed that whatever construction the respondent Nos.1 and 2 make hereinafter and whatever third party rights are created by the respondents herein, would be subject to result of the suit and that the said respondents would not be entitled to claim any equities in that regard. (4) Writ Petition is disposed off in the aforesaid terms. (B.R.GAVAI, J)