M/S Jayantilal Investments vs Madhuvihar Co-Operative Housing ...

On 26.8.1980 an agreement was arrived at between the vendors and the appellant herein (M/s Jayantilal Investments-Promoter) in respect of 8559.57 sqm. of land in CTS No. 1068 village Kandivili, Tehsil Borivili, Greater Mumbai. Subsequently, under a Revised Draft Development Plan, a 44 ft. wide road was indicated and, consequently, the area admeasuring 8559.57 sqm. stood divided. On account of this division, a plot admeasuring 6071 sqm. emerged as the suit land. On 16.11.1984 the appellant-promoter obtained NOC under Section 21(1) of the Urban Land Ceiling Act, 1976 ("ULC Act") permitting it to construct a building with 7 wings and 137 tenements for weaker section. The construction was to be made in accordance with the prevailing Municipal Regulations, Town Planning requirements and Statutory Regulations. On 21.10.1985 the lay out plan was sanctioned. It indicated 1 building with 7 wings. At that time, due to existence of a narrow road as access, the promoter was entitled only to FSI of 0.75. This plan was amended in 1986, 1987, 1989, 1992 and 1994 without any objection from the flat takers. At this stage, it may be mentioned that on 6.5.1986 the lay out plan was revised and approved with 5 wings having additional floors as well as FSI of 1.00 due to construction of 44 ft. wide DP road on the original plot admeasuring 8559.57 sqm. of land.

From time to time, agreements stood entered into between the appellant and the flat takers for sale of flats. These agreements are dated 7.12.1985, 11.4.1987, 18.1.1989, 30.4.1989, 27.7.1991 etc. On 12.11.1986 MOFA was amended retrospectively. Under that amendment Section 7A was inserted excluding 'additional structures' from the scope of Section 7(1)(ii) and thereby lifted the requirement of consent of flat takers. However, the said amendment was restricted to the plots falling under a scheme or a project under the lay out plan. The object behind enacting Section 7A was to overcome the judgment of the Bombay High Court in the case of Kalpita Enclave Co-operative Housing Society Ltd. v. Kiran Builders Private Ltd. 1986 MhLJ 110. On 12.4.1989 on receiving occupation certificate, possession of flats was handed over to the flat takers. Some flats remained to be sold. They stood in the name of the appellant-promoter.

On 12.8.1997 the Co-operative Society-respondent No. 1 and five flat takers (members) instituted suit no. 4385/97 against the appellant-promoter for conveyance, injunction restraining the promoter from putting up further constructions and questioning the validity of the sanction given by the competent authority to the amended plan dated 29.3.2001 under which the competent authority sanctioned 5 + 2 wings applying the newly available FSI.

For the aforesaid reasons and in view of the law enunciated by us vide this judgment, the impugned judgment is set aside and the matter is remitted to the High Court for reconsideration. As the matter has been under litigation for a considerable length of time, we hope that due priority will be given for early disposal of this matter.

Subject to what is stated, the appeal is allowed with no order as to costs.