Case: AKHIL BHARTVARSHIYA MARWARI AGARWAL JATIYA KOSH AND ORS Vs. BRIJLAL TIBREWAL AND ORS

4. The facts leading to the present appeals in nutshell are asAppellant No. 1 Trust- Akhil Bhartvarshiya Marwari Agarwal Jatiya Kosh (hereinafter referreds, registered under Bombay Public Trusts Act,to the Trust, under a duly registered Conveyance dated 30.10.1974, the Trust acquired 9797 sq. meters of land with a charitable object of providing Housing to weaker sections of the Society. That the said area of 9797 sq. meters included the Plot bearing CTS No. 97/A-5/2 of Village Chinchavli, Malad (East), Mumbai admeasuring 2593.70 sq. meters. According to the Trust, the Mumbai Municipal Corporation sanctioned the plan of the Trust in the year 1974-75 for construction of building A-1 to be constructed on sub-plot carved out of CTS No. 97/A-5/2 (the disputedthe building A-1 was to consume the area of 1009.70 meters equivalent to 1205 sq.between 1975-78, the Trust constructed building A-1 comprising of 20 Flats each admeasuring built-up area of 588 sq. ft. and the purchasers took possession of the respectiveabout 26 years after they took possession, the Purchasers-Respondents herein the original Plaintiffs filed Suit No. 4111 of 2004, inter alia, for directing the Trust and others to execute the Conveyance of Plot No. A/1 claiming that they were entitled to the Plot area of around 1205 sq. yards (1009.70the original Plaintiffs prayed for the following reliefs in theThat it is declared that the Defendant No. 1 is bound andTo complete the said building A/1 in accordance with the building plans sanctioned by and in terms of the conditions of IOD and CC issued by the Defendant No. 2 in respectTo obtained Occupation Certificate for the said building No.To provide supply of municipal water to the said buildingTo obtain building Completion Certificate for the said buildingTo form co-operative housing society of theTo convey the said building A/1 together with the plot of landThat this Hon?ble Court may be pleased to pass permanent orderDefendant No. 1 to obtain occupation certificate and municipal water connection to the said building A/1.ii) Defendant No. 1 to form co-operative housing society of the plaintiffs.iii) Defendant No. 1 to convey the said building together with plot J/1 to the Co-operative Housing Society of the Plaintiffs.iv) Defendant No. 1 not to carry out any construction upon thev) Defendant No. 2 to cancel the permission given to the Defendant No. 1 to carry out construction on the said plot ?J?.vi) Defendant No. 2 not to give any further permission to Defendant No. 1 to carry out any construction on the saidvii) Defendant No. 2 to take necessary actions against Defendant No. 1 for carrying out construction of unauthorized hutments.It was the case on behalf of the original Plaintiffs that the Plaintiffs have paid full purchase price for purchase of their respective flats in the said building A-1, constructed by the original Defendant No. 1,though the Trust handed over the possession of the flats to the respective flat owners and they are put in possession and occupation of the respective flats, the Trust have failed to obtain occupation certificate of the said building in terms of the IOD and CC issued by the Corporation. That it was the case on behalf of the original Plaintiffs that the original Defendant No. 1 Trust, as promoter under the provisions of Maharashtra Ownership Flats Act, 1963 (hereinafter referred to as the ‘MOFA?) were bound to enter into the agreement, as prescribed under the said Act with all such flat purchasers for sale of the flats. It was the case on behalf of the original Plaintiffs that, under the provisions of the ‘MOFA? and, otherwise also, it is the basic duty and responsibility of the Trust to provide all the essential supplies and services including supply of water, electricity and sanitary services to be enjoyed by the flat purchasers. It was also the case of the original Plaintiffs that the Trust was bound to form the Co-operative Society of the flat purchasers under the ‘MOFA?, however, though the Trust collected from each of the flat purchasers an amount of Rs. 351/- towards membership fee and share money of such Society, they did not form such a Co-operative Society. It was a specific case on behalf of the original Plaintiff that the building occupied by the plaintiffs are consisting of ground plus four storeys and the total built-up area is around 1205 sq. meters. It was the case on behalf of the original Plaintiffs that, under the provisions of law, the Plaintiffs and/or the Society to be formed by the flat purchasers are entitled to an area of land corresponding to the built-up area of building so constructed of such land utilizing the FSI permissible at the relevantwas the further case on behalf of the original Plaintiffs that despite the above, the Trust original Defendant No. 1, made an attempt to carry out some construction just adjacent to the said building A-1 of the plaintiffs which was registered by the plaintiffs even by making complaint to the Defendant No.2,The Suit was resisted to by the originaloriginal Defendant No. 1 Trust and original Defendants Nos. 3 to 17, filed the common written statement denying the averments and allegations in thewas the case on behalf of the original Defendant, so stated in the written statement that the original Defendant No. 1 and 3 to 17 are the owners of property bearing CTS Nos. 97/A-5/2, 97/A-5/4 and 97/A-5/3 total admeasuring 9797 sq.20.12.1975. That thereafter, Defendant No. 1 Trust appointed an Architect, for the purpose of submitting plans. The plans were submitted for construction of 14 buildings, each being ground plus four upper floors. It was further contended that the Trust could complete only one building, as further construction could not be done because of the declaration of the Suit Plaint as the surplus land under Urban Land Ceilingappeal preferred by the Trust was partly allowed in 1993 and 1998  only 4000 sq. meters area was declared as surplus land. It was submitted that, therefore, the Trust has to drop the idea of further development and it was, therefore, decided to construct structures for only charitable purposes like Schools, Colleges etc. It was further contended that the plot is effectively divided into three parts, first part is building occupied by the plaintiffs, second is the School building and the third being the plot reserved forThat the learned Trial Court framed the following issues:Does the defendant no. 2 prove that the suit is maintainable in absence of notice u/section 527 of MMC Act?2) Does plaintiff prove that he is entitled for direction to defendant no.To complete the building A-1 in accordance with the building plans sanctioned by and in terms of the condition from IOD and CC issued by the defendant no. 2 Corporation in respectTo obtain occupation certificate for the building no. A-1.To provide supply of municipal water to the building no.-A.To obtain building completion certificate for building no. -A.o form co-operative housing society of the. To convey building no. A-1 with the plot of land J-1 to theDoes plaintiff prove that they are entitled for the reliefs as prayed?On behalf of Defendant. one Omprakash Didwanja DW-1 came to bethe parties produced the documentary evidences. That, on appreciation of evidence, the learned Trial Court decreed the Suit asNo.1 shall execute and register the agreements in favour of flat purchasers as per Section 4 of ‘MOFA? at the cost of plaintiffs within three months from the date ofNo.1 shall complete the suit building in accordance with the building plans sanctioned as per IOD and CC issued by Defendant No. 2 and obtain Occupation Certificate within four months from the date of order. If defendant no. 1 failed to do so within stipulated time, plaintiffs shall get the work done through any other Builder of their choice and recover the cost from defendant no. 1 and thereafter BMC shall grant Occupation Certificate to theNo.1 is also directed to make the necessary compliance for obtaining supply of municipal water to the suitNo. 2 shall supply the municipal water to the suit building on humanitarian ground till the full compliance is made by plaintiffs and defendant no.No. 1 is directed to form a co-operative Housing Society of the flat purchasers of the suit building within four month from the date ofNo. 1 is entitled to the balance FSI of the said plot of land which was available to them at the time of sanction of original plans, which Defendant No. 1 is entitled to consume the same till conveyance isNo. 1 shall convey the title and execute documents in favour of the society in respect of the suit building and land to the extent of suit building as shown in the plans within six months from the date of the order, failing which plaintiffs shall be entitled to apply before the Competent Authority u/section 5A for unilateral conveyance in theirThat feeling aggrieved and dissatisfied with the judgment and decree passed by the Trial Court decreeing the Suit No. 4111 of 2004, the original Defendants (except for Defendant No. 2 Corporation) preferred the First Appeal No. 466 of 2010 before the High Court. At this stage, it is required to be noted that during the pendency of the Suit, the Society of the flat purchasers was registered in the name of Agrasen Co-operative Housing Society Ltd. under the provisions of the Maharashtra Co-operative Societies Act,during the First Appeal preferred by the original Defendants, in the year 2014, the Society initiated proceedings before Divisional Registrar, Co- operative Societies for execution of Conveyance Deed. That, thereafter, the High Court dismissed the Appeal No. 466 of 2010 by judgment and order datedIt appears that in the proceedings before the Divisional Registrar initiated by the Society, the Trust filed a reply before the Divisional Register on 10.12.2014 pointing out that the Respondents herein the original Plaintiffs were entitled to the Conveyance of land admeasuringmeters only and not 2593.70as claimed by original Plaintiffs. That, thereafter, the High Court, on an oral application of the Respondents herein by wayfor speaking to theMinutes? clarified that thesq. feet? appearing in paragraph 8 of the judgment and order dated 04.12.2014 should be readIt appears that as the objection was raised by the Trust before the Divisional Registrar that the Respondents are entitled to Conveyance of land admeasuring 1009 sq.meters only and not 2593.70sq. meters as alleged and prayed, and to get over the said objection of the Appellants before the Divisional Registrar, the Respondents-original Plaintiffs again made an oral application by wayfor speaking to theMinutes? alleging that though in the paragraphs 8 and 9 of the judgment and order dated 04.12.2014, it was mentioned that the Respondents were entitled to get the Deed of Conveyance executed in respect of the area equivalent to 2700 sq. meters, but in the operativewas mentioned that Conveyance in respect of the land only to the extent of plot be executed and, therefore, the order deserves to be corrected by way of mentioning the area of 2700 sq.by the impugned order, the High Court virtually modified its earlier order dated 04.12.2014 and directed the execution of the deed of Conveyance of the land to the extent of building i.e. 2700 sq.That by impugned order the High Court has dismissed the Civil Application No. 1698 of 2015 in First Appeal No. 466 of 2010. However, by dismissing the Civil Application, the High Court has further clarified that the appellants shall be entitled to consume the balance FSI of plot of theby the impugned order, the High Court has also dismissed the Writ Petition No. 992 of 2015 and has confirmed the order of deemed Conveyance for the area admeasuring 2593.70 sq. meters.6. Feeling aggrieved and dissatisfied with the impugned order passed by the High Courtfor speaking to theMinutes? in First Appeal No. 466 of 2010 as well as the order passed in Civil Application No. 1698 of 2015 in First Appeal No. 466 of 2010, the original Defendants-Appellants have preferred the present SLP (Civil) Nos. 10093-94 of 2016. Feeling aggrieved and dissatisfied with the order passed by the High Court in Writ Petition No.992/2015, the original Petitioners have preferred the SLP (C) Nos. 15056 of 2016.

Reasoning:
12. Having heard the learned counsel for the respective parties and considering the impugned order passed by the High Court passed belowfor speaking to theMinutes?, we are of the opinion that while passing such order belowfor speaking to theMinutes?, the High Court has travelled beyond its jurisdiction in regard to the scope of decidingfor speaking to thee for speakingto Minutes? is required to be entertained only for the limited purpose of correcting a typographical error or an error through oversight, which may have crept in while transcribing the original order. Once, the judgment/order is pronounced and if any party to the same wants any rectification of any typographical error and any clerical mistake regarding the date or number, such a party may apply to the concerned Court for correcting such an error in the judgment/order. However, a ?Notefor speaking to theMinutes? cannot be considered at par with a review application or in a given case, with an application for clarification/modification of ane for speakings? can never be considered to be an application of such apassing the impugned order belowfor speaking to theMinutes?, the High Court has virtually modified its original order passed in Firstpassing the impugned order, the High Court has given further directions as if the High Court is passing the order on an application forsuch a course was not open to the High Court while decidingfor speaking to theMinutes?. Since, the High Court has travelled beyond its jurisdiction in regard to the scope of decidingfor speaking to theMinutes?, we have no option but to set aside the impugned order passed belowfor speaking to theEven otherwise, the impugned orders are not sustainable at law. It is required to be noted that it was the Appeal before the High Court, preferred by the Appellants herein–original Defendants, challenging the judgment and decree passed by the learned Trial Court, by which the learned Trial Court specifically passed a decree directing the only Defendant No.1 to convey the title andin favour of the Society in respect of Suit Building and land to the extent of Suit Building. The Suit Building, from the material on record, it is emerging that the area of the building was 1009.70 sq. meters. Against that judgment and decree, original Private Defendants- Appellants were before the HighTrial Court never passed any decree directing the Appellants to execute the Deed of Conveyance to the extent of 2700 sq. meters ofwhile dismissing the appeal, even otherwise, the High Court could not have passed any further order beyond the judgment and decree passed by the Trial Court and that too in absence of any cross objection and/or cross appeal preferred by the originalEven otherwise, it is not appreciable how the High Court has arrived at the figure of 2700 sq.appears from the material on record that it was never the case on behalf of the original Plaintiffs that the original Defendant No.1 shall execute the Deed of Conveyance of the land to the extent of 2700 sq. meters. Even considering the map sanctioned by the Corporation and even considering the reply filed by the Corporation before this Court, it appears that the total plot area of CTS No. 97/A-5/2 on which the building A-1 was constructed, was 2593.70 sq. meters, out of which there was a construction of building A-1 on the land admeasuring 1009.70 sq.ed byg the Appellants herein-original Defendant No.1 to execute the Deed of Conveyance in respect of the land to the extent of 2700 sq. meters is notsame has no substance. There is a difference and distinction between the built-up area of building and the plot area. As observed above, the Plaintiff specifically averred and pleaded in paragraphs 18 that they are entitled to an area of land corresponding to the built-up area of the building so constructed on suchHaving heard the learned counsel for the respective parties and considering the orderhe Divisional Registrar of deemed Conveyance of the area admeasuring 2593.70 sq.meters, it appears that the Divisional Registrar considered the ordersby the High Courte for speaking?? in the First Appeal as well as solely relying upon the property card. However, as observed hereinabove, whileer passedby the High Courtfor speaking to theMinutes?, the original Plaintiff-Society shall not be entitled to the Deed of Conveyance to the extent of area admeasuring 2700 sq.meters and/or even 2593.70 sq.meters and they shall be entitled to the Deed of Conveyance of the area admeasuring 1009.70 sq.meters which was the built up area of building A-1 and, therefore, for the reasons stated hereinabove, the impugned judgment and orderby the High Courtdated 10.09.2015 in Writ Petition © No.992/2015 confirming the orderhe Divisional Registrar Co-operative Societies of deemed Conveyance of the area admeasuring 2593.70 sq.meters also deserves to be quashed and set aside and the Appeals arising out of the impugned ordersby the High Courtin W.P. No. 992 of 2015 deserves to be allowed.