IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6919 OF 2008 M/s.Swojas Associates Pvt.Ltd. ...Petitioner V/s. Swojas Dhruv Apartments Condominium & Ors. ...Respondents ...... Mr.R.V.Govilkar for Petitioner. Mr.P.S.Dani for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 12, 2009. FEBRUARY 12, 2009. FEBRUARY 12, 2009. P.C. 1. Heard Counsel for the parties. 2. Three contentions have been raised before this Court. The first argument is that the document dated 6th May 2007 at page 210 of the compilation is indicative of the fact that the buyers/occupants had consented for proposed construction of the fifth floor. The Trial Court on analysing that document has held that there is : 2 : implicit consent. The Appellate Court reappreciated the same document and has taken the view that the said document, by no standards, can be stated to be giving written consent by the occupants for allowing construction of fifth floor. The view so taken by the Appellate Court is a possible view. At this interlocutory stage, it is not possible to overturn the said opinion of the Appellate Court having regard to the tenor of the document dated 6th May 2007. 3. The next argument canvassed before this Court is that the construction on the fifth floor was proposed to be part of the Scheme. According to the Petitioner, this argument was specifically canvassed before the lower Court but has not been dealt with. This grievance is made only across the bar. No such specific averment is found in the reply filed before the lower Court. As a matter of fact, neither the Trial Court nor the Appellate Court has adverted to this contention which presupposes that such argument was not canvassed. Counsel for the Petitioner submitted that this specific stand is taken in the written submission : 3 : filed before the Appellate Court, however, is unable to substantiate that position from the written submission. Even assuming that this Court is obliged to consider the argument now canvassed, the same is founded on the averment made in Para 7 of the written statement. The written statement does not refer to agreement between the parties but a brochure which preceded the conclusion of the contract. That cannot be the basis to answer the point in issue. Accordingly, there is no substance even in this submission. 4. Counsel for the Petitioner lastly submitted that the occupants had made complaint to the Municipal Corporation about the illegality of the construction of fifth floor and the Corporation had occasion to consider all the relevant aspects which would answer the point in issue. It is not possible to accept this submission. The opinion of the Corporation cannot be the basis to answer the issue. It is for the Civil Court to consider the factum of prior consent in writing given by the occupants for the proposed construction of 5th floor. The law requires prior written consent of : 4 : the concerned occupants. The fact that the fifth floor was part of the Scheme ought to have been made known to the occupants and should have been part of the Agreement executed between the parties. No clause in the Agreement is pointed out which would substantiate this stand. Accordingly, this Petition is devoid of merits. Dismissed. A.M.KHANWILKAR, J.