1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1594 OF 2008 IN B.C.C.C.S.C. SUIT NO. 3007 OF 2003 ALONGWITH CIVIL APPLICATION NO. 3794 OF 2008 IN F.A. NO. 1594 OF 2008 1. Mr. Hygieno Rozario , Age 68 yrs. | .. Appellants/ Wing B, Roz-A-Rio Bldg.,Off. L.B.S. Marg, | (Org.Defendants) Kurla (W),Mumbai -400 070. | | 2. Fr. Oscar Rozario, St. Pius College, Aarey Rd., | Goregaon (E) Mumbai -63. | | 3. Mrs. Barbara Nayak, | 5, Meghna Manor, 9-1-87/5, Old Lancer Lane | Secunderabad -500 025. | V/s. 1. Roz-A-Rio Co-op. Hsg. Society Ltd., | .. Respondents. A society registered under the provisions of the (Org.Plaintiffs) Maharashtra Co-operative Societies Act, 1960, | having its office at Opp. S.K.Gupta & Company Pvt.Ltd., Off. L.B.S.Marg, Kurla (W), Mumbai-70 | 2. Mr. Savio Antao and | 3. Mrs. Judith Antao, both Nos. 2 & 3 occupying Flat No.1. | 4. Ms. Fatema Sadikot, occupying flat No.2, | 5. Mrs. Cynthia Gonsalves, occupying flar No.3. | 6. Mr.Noruddin T. Sadikot and | 2 7. Dr. Akil Sadikot, both Nos. 6 & 7 occupying Flat No.4, | 8. Mr. Manoj Gangar and | 9. Mrs. Preeti Gangar, both Nos. 8 & 9 occupying Flat No.5, | 10. Mr. Pradip Garach and | 11. Mrs. Nivedita Garach, both Nos. 10, 11 occupying flat no.6. | 12. Mrs. Dorothy Neville Pais, occupying flat no. 7. | 13. Mr. Glenn Pais, occupying flat no.8. | 14. Mr. Randell Pais and 15. Mr. Neville Pais, both Nos. 14 & 15, | occupying flat no.9. | 16. Mrs. Carmine Pereira, occupying flat no.11. 17. Mrs. Ulka Walawalkar, occupying flat no.13. | 18. Mrs. Carmine D’Souza, occupying flat no. 14, 19. Mrs. Glancy Correia, occupying flat no.15, | 20. Mr. Gurunath Dhotre, occupying flat no.16, 21. Mr. Chandrasekhar Dhotre and | 22. Mr. Keshav Dhotre, both nos. 21 & 22, occupying flat no. 17. | 23. Mrs. Sugra Dalvi, occupying flat no.18, | 24. Mrs. Evelyn Fernandes, 25. Miss Pancy Fernandes, both nos. 24 & 25 | occupying flat no. 19. 26. Mrs. Mercy Rodrigues, occpying flat no. 20, | .. Respondents/ all nos. 2 to 26 of Mumbai, Indian Inhabitants, (Org. Plaintiffs) all residing in ‘A’ wing, in the flats indicated | against their respective names, Roz-A-Rio Bldg., Opp. S.K.Gupta & Co. (P) Ltd., Off. L.B.S.Marg, | Kurla (W), Mumbai- 400 070. --- 3 Mr. Y.S. Jahagirdar Sr. Counsel i/by Bipin Joshi for the Appellants. Mr. Navin Parekh, Sr. Counsel a/w. J.P. Sen i/by M/s. Federal & Rashmikant for Respondent No.1. . --- CORAM : J. H. BHATIA, J. DATED : 18th September, 2009 JUDGMENT : 1. The present Appeal is filed by the original defendants against the judgment and decree passed by the City Civil Court in S.C.Suit No. 3007 of 2003 in favour of the plaintiffs-respondents. It is their case that original defendant nos. 1 to 3 were the owners of the land bearing city survey no. 242, survey no. 79(2), admeasuring 1384.94 sq. mtrs. situated at village Kurla, Tal. Kurla. The defendant nos. 1 to 3 formed a partnership firm which is defendant no. 4. Defendant Nos. 1 to 3, being owners of the land, entered into an agreement with defendant no.4, the partnership firm and gave the development rights to the said firm. Defendant no.4 in turn entered into a contract with the plaintiffs, who are members of Plaintiff No.1-Co-operative Society for development and construction of a building, consisting of ‘A’ wing and ‘B’ wing. The ‘B’ wing was to consists of 3 flats of 1000 sq. ft. each. Defendant nos. 1 to 3, being owners of the land, 4 were to became lessee of the co-operative society in respect of the 3 flats in ‘B’ wing. To be specific they were to get a flat of 1000 sq.ft each with land underneath the same as lessees of the society. Another building ‘A’ wing, consisting of 20 flats, was to be occupied by the members of the society. 2. In the suit agreement which was executed by the purchasers, who became members of the society on one hand and defendant no.4 on the other, the defendant nos. 1,2 and 3 were the consenting parties. Therefore, they are bound by the terms of the contract. It also appears that the development agreement was entered into between defendant nos. 1 to 3 on one hand and defendant no.4 on the other, under which the defendant nos. 1,2 and 3 were to get 3000 sq. ft. built up area with land underneath the said structure. However, defendant no.4 executed lease deed in favour of defendant nos. 1,2 and 3 for the area, admeasuring 5300 sq. ft. and thereby the defendant nos. 1 to 3 claimed to have got not only building consisting of 3 flats but also the land admeasuring 5300 sq.ft. In view of this and certain other contravention of the provisions of MOFA (Maharashtra Ownership Flats Act), the plaintiffs filed a suit, claiming certain reliefs including a declaration that the lease deed executed by defendant no.4 in favour of defendant nos. 1, 2 and 3 is in violation of the agreement between the parties and is illegal. 5 3. The suit was contested by the defendants on various grounds and an attempt was made to show that developer had a right to lease the property to defendant nos. 1 to 3 as the property has not been yet transferred by execution of a registered conveyance in favour of the society. The trial court framed several issues and decreed the suit in favour of the society. It was specifically held that defendant nos. 1 to 3 are entitled to lease of only 3000 sq. ft. built up area comprising of 3 flats and the land underneath the same and that the lease deed executed in favour of defendant nos. 1 to 3 is in contravention of the agreement between defendants on one hand and the plaintiffs on the other hand. The said judgment and decree is sought to be challenged in the present Appeal. 4. The appeal is taken up immediately for hearing and final disposal with the consent of the parties. 5. Following point arises for my consideration : Whether lease deed executed by defendant no.4 in favour of defendant nos. 1 to 3 is in violation of the agreement between the plaintiffs on one hand and defendant no.4 on the other to which defendant nos. 1,2 and 3 are the consenting parties ?. 6 6. There is no dispute about the ownership of defendant nos. 1 to 3 on the land on which the construction was taken up. As such there is no dispute that the defendant nos. 1,2 and 3 entered into an agreement for development and gave the development rights to defendant no.4 which is a partnership firm. In fact it appears that except one partner, who is outsider, the defendant nos. 1,2 and 3 themselves are the partners of the said firm and thus practically defendant nos. 1, 2 and 3 gave development rights to themselves in a different form. The firm entered into a contract with certain persons, who wanted to purchase the flats. The plaintiff no.1 is a co-operative society of those purchasers. Under that agreement, admittedly, defendant nos. 1, 2 and 3 were to get on lease ‘B’ wing of the building, consisting of 3 flats of 1000 sq.ft., each with land beneath the same. Admittedly, defendant nos. 1, 2 and 3 were the consenting parties to that agreement in their individual capacity, as the agreement was executed by defendant no.4 partnership firm. Besides this, under the agreement, which was entered into between defendant nos. 1,2 and 3 as owners of the land and defendant no.4 as partnership firm also, each of the defendant nos. 1, 2 and 3 was to get lease of 1000 sq. ft. built up area with the land beneath the same. Thus there was no inconsistency between the original development agreement between defendant nos. 1 to 3 on one hand and the firm on the other and the agreement between 7 defendant no.4 and purchasers of the flat. Thus under both the agreement, the defendant nos. 1,2 and 3 were to get total 3 flats having built up area of 3000 sq. ft. with land beneath the same; of course right of way was to be available to them under the agreement. 7. However, the lease deed was executed on 30.05.1996 between defendant nos.1,2 and 3 on one hand and the defendant no.4 on the other, where under not only 3 flats in ‘B’ wing were to be leased out to the defendant nos. 1,2 and 3 but with the said flats they would also get lease over 5300 sq.ft. land. When defendant nos. 1,2 and 3 are themselves the partners of defendant no.4 firm and when they had in their individual capacity also consented to the agreement between purchasers of the flat and defendant no. 4, where under they were to get only 3 flats with built up area of 3000 sq. ft. only, they could not get the lease of 5300 sq.ft land. From this it is clear that the agreement of lease is in contravention of the earlier two agreements. 8. The learned senior counsel for the plaintiffs contended that under regulation nos. 28 and 29 of the Development Control Regulations applicable to the Municipal Area of Greater Bombay, certain space has to be left open around every building and when more than one buildings are constructed on the land, the 8 open space required under the regulations shall be separate or distinct for each building and therefore, defendant nos. 1 to 3 who were to get lease of all 3 flats in ‘B’ wing are also entitled to lease of the open space around that building. It is difficult to accept this contention. The provisions in the development control regularions are only to see that buildings are constructed in orderly manner, and there is sufficient open space so that there should not be any difficulty about the air, light, parking and other common utilities. This provision about open space around a building has nothing to do with the contract to lease out certain flats to lessees. As far as lease agreement is concerned, it will be as per the contract between the parties while the requirement of open space is the statutory requirement under the regulations. The defendant nos. 1 to 3 were to get lease hold rights on the flats in ‘B’ wing and similarly other purchasers of the flats were to occupy flats in ‘A’ wing and the open space in the campus of both the buildings will remain open. It cannot be used by any of the member exclusively. This open space may be utilized either for passage or for parking or for other utilities as permitted under the development regulations. Defendant nos. 1, 2 and 3 cannot claim any right of lease of the open space around the said building. Learned senior counsel for the plaintiffs -respondents contends that this argument is advanced for the first time before this court and no reliance was placed on regulations nos. 28 and 29 pertaining to open space before the trial 9 court nor the agreements speak anything about the special right to be granted to defendant nos. 1, 2 and 3 in respect of the open space. 9. In view of the above facts and circumstances, it is clear that open space around both the buildings will remain open subject to the regulations and defendant nos. 1, 2 & 3 cannot claim any right on the land or on the open space on the basis of the lease deed, except the right which has been given to them under the agreement. The learned senior counsel for appellants also contended that defendant nos. 1, 2 and 3 may have right of the parking as per the regulation 36 but that question was never raised before the trial court. If they are entitled to certain parking space they can approach the society of the purchasers, which is required to be formed under the law or to any other authorities as per the law. In view of the above circumstances, I find no fault in the judgment and decree passed by the trial court in favour of the plaintiffs-respondents. 9. In the result the Appeal stands dismissed. In view of the dismissal of the Appeal itself, nothing survives in the civil application and the same is also disposed of as such. (J.H. BHATIA,J.)