Appeal From Order No. 117 of 2016 in Notice of Motion No. 2672 of 2014 in Suit No. 2073 of 2014 and Appeal From Order (ST) No. 23483 of 2015 in Notice of Motion No. 2672 of 2014 in Suit No. 2073 of 2014. Case: Dosti Corporation and Ors. Vs Sea Flama Co-operative Housing Society Limited and Ors.. High Court of Bombay (India)
| Case Number | Appeal From Order No. 117 of 2016 in Notice of Motion No. 2672 of 2014 in Suit No. 2073 of 2014 and Appeal From Order (ST) No. 23483 of 2015 in Notice of Motion No. 2672 of 2014 in Suit No. 2073 of 2014 |
| Counsel | For Appellant: Aspi Chinoy, Senior Advocate, Girish Godbole, Jyoti Sinha, i/b. Negandhi Shah and Himaytullah and For Respondents: E.P. Bharucha, Senior Advocate, Mayur Khandeparkar, Nasir Rizvi and Megha Jankiram, i/b. Thakore & Jariwala Associates |
| Judges | R.D. Dhanuka, J. |
| Issue | Bombay General Clauses Act, 1904 - Sections 6(e), 7, 7(1), 7(A); General Clauses Act 1897 - Section 6, General Clauses Act 1897 - Section 6(c); Maharashtra Housing (regulation And Development) Act, 2012 - Sections 1, 1(3), 14(1), 18, 19, 19(2), 19(8), 2(q), 21, 22, 23, 3(1), 3(3), 36, 51, 52, 56; Maharashtra Ownership Flats (regulation Of The ... |
| Judgement Date | April 07, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
R.D. Dhanuka, J.
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By consent of parties, both these appeals were heard together finally at the admission stage and are being disposed of by a common order.
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Appeal from Order No. 117 of 2016 filed by the original defendant No. 1 inter alia challenging the order dated 27th July, 2015 passed by the learned trial judge in the Notice of Motion No. 2672 of 2014 which was filed by the respondent No. 1 herein (original plaintiff) and thereby granting temporary injunction against defendant Nos. 1 and 2 restraining them from putting up any construction work upon or over the suit properties till disposal of the suit and further restraining them from using any FSI as available in the suit properties or part thereof till disposal of the suit.
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Appeal from Order (St) No. 23483 of 2015 has been filed by the original defendant No. 1 challenging the said order dated 27th July, 2015. Respondent Nos. 3, 4 and 5 in these appeals were the original defendant Nos. 3, 4 and 5 respectively in the notice of motion. For the sake of convenience, the parties as described in the notice of motion were described in this judgment. Some of the relevant facts for the purpose of deciding these two appeals are as under:--
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Defendant No. 2 was the original owner of the suit property i.e. land bearing CS No. 5/209 (part) of Parel Bhoiwada and Sewri Division and C.S. No. 210 (part) of Parel Sewri Division admeasuring in aggregate 27,185.46 sq.mtrs. both situate at Tokershi Jivraj Marg, Sewri, Mumbai.
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By a registered development agreement dated 10th June, 2004 between the defendant No. 2 and defendant No. 1, the defendant No. 2 gave the suit property to the defendant No. 1 for the purpose of development of the suit property and also executed a registered irrevocable power of attorney.
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On 10th September, 2004, the defendant No. 2 entered into a registered supplemental development agreement with the defendant No. 1 confirming that the defendant No. 2 had received full and final consideration from defendant No. 1 and also executed further irrevocable power of attorney granting various powers to the defendant No. 1 for developing the suit property.
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The development of the suit property commenced on 27th May, 2004 and continued till 31st March, 2008. During the stage of the construction on the suit property, various parties entered into agreement for sale with the defendant No. 1 for purchase of various flats in the four wings constructed by the defendant No. 1. The defendant No. 1 constructed a complex i.e. Dosti Flamingos Project comprising of four wings i.e. Wing 'A', Wing 'B', Wing 'D' and Wing 'E' and subsequently registered four separate co-operative housing societies viz. Snow Flama, Sandy Flama, Sea Flama and Sky Flama respectively connected by a common basement podium on the said property. The original plaintiff and defendant Nos. 3 to 5 are those four societies occupying those four wings i.e. Wing 'A', Wing 'B', Wing 'D' and Wing 'E' respectively.
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On 27th May, 2004, the defendant No. 1 obtained commencement certificate from the Municipal Corporation of Greater Mumbai. On 22nd June, 2007, the defendant No. 1 obtained completion certificate for Wing 'A' which was subsequently registered as Snow Flama Co-operative Housing Society Limited and Wing 'B' which was registered as Sandy Flama Co-operative Housing Society Limited. It is the case of the plaintiff that defendant No. 1 however did not form the society as per obligation cast on the defendant No. 1 under the provisions of Maharashtra Ownership Flats Act, 1963.
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On 31st March, 2008, the Municipal Corporation issued a completion certificate for the entire complex with the entire sanction and accurable FSI of 38185.10 sq.mtrs. save and except 2.5 sq. mtrs as on that date being fully utilized. According to the plaintiff, the development thus stood completed on 31st March, 2008.
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On 19th May, 2010, the defendant No. 1 registered the Snow Flama Cooperative Housing Society Limited i.e. after delay of about three years from the date of completion and handing over the possession to various flat buyers in the said 'A' wing. On 3rd June, 2010, the defendant No. 1 registered the Sky Flama Co-operative Housing Society Limited i.e. Wing 'E' in the said complex. On 14th June, 2010, the defendant No. 1 registered the Sandy Flama Co-operative Housing Society Limited (Wing 'B') i.e. after three years delay from the date of completion and handing over possession to the various flat buyers in the said wing 'B'. On 17th June, 2010, defendant No. 1 registered Sea Flama Co-operative Housing Society Limited (Wing 'D') i.e. after delay of about two years from the date of completion and possession.
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The plaintiff society appears to have filed various applications under the Right to Information Act in the year 2012-13. It is the case of the plaintiff that the plaintiff came to know that the defendant No. 1 had applied for modification of the plan. On 9th November, 2009, the Municipal Corporation issued intimation of disapproval (IOD) for public parking lot for B+G+P+10 Upper floors, commencement certificate for work upto plinth level to proceed with the said building or work at any time before 17th November, 2010 admeasuring about 15990.32 sq.mtrs. and 41.96 mtrs in height. The Municipal Corporation also issued IOD on 7th June, 2010 in favour of the defendant No. 1 for construction of Wing 'C' for stilt + P connected to existing parking and podium of the complex + 1st to 19th floor admeasuring 7995.16 sq.mtrs area in 62.77 mtrs. in height. The plaintiff obtained Certificate of Area Statement in respect of Wing 'C' under the Right to Information Act.
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The plaintiff also came to know that on 4th March, 2011 the Urban Development Department of the State Government had sent a letter to the Municipal Commissioner requesting it to submit a proposal for amendment of clause 33(24) of the Development Control Regulation for limiting the height of parking towers to 4 floors and also revocation of all sanctioned proposals where the commencement certificate had not been issued. The Municipal Corporation thereafter issued a circular on 22nd June, 2011 thereby prescribing certain conditions under clause (iv) of the Regulation 33(24) of the Development Control Regulation and certifying that all proposals for public parking lots shall be considered subject to those conditions. The new conditions sought to limit the height of the public parking to ground plus 4 upper floors and two basements.
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It is the case of the plaintiff that the defendant No. 1 had applied for construction of a public parking lot without obtaining consent of the members of the plaintiff and defendant Nos. 3 to 5 society and that part of the construction was not forming part of original plan as disclosed to each of the flat purchaser. It is also the case of the plaintiff that the entire construction was to be carried out by the defendant No. 1 only for residential purposes and not for commercial purposes. It is the case of the plaintiff that if any commercial construction activities are allowed, it would reduce the open space and recreational area which would be in violation of Regulation 23 of the Development Control Regulation and public parking lot would create additional problems and pollution in an already overcrowded neighbourhood, which would affect the members and their family residing on the said property.
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On 19th August, 2013, the plaintiff addressed three separate legal notices through their advocates to the defendant No. 1 calling upon the defendant No. 1 to discharge its obligations and complete the conveyance, to remove barricades and desist from obtaining and/or to withdraw any sanction for purported public parking lot and also called upon the defendant No. 1 to pay over corpus amount. According to the plaintiff, the defendant No. 1 through their advocates three letters all dated 24th October, 2013 gave evasive reply and falsely denied that no breaches were committed by the defendant No. 1. The plaintiff through their advocates' three letters dated 9th July, 2014 again called upon defendant No. 1 to comply with their various obligations. On 10th July, 2014 the plaintiff filed a suit in the City Civil Court at Bombay against the defendants. Defendant Nos. 3 and 5 were made formal parties to the said suit.
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The plaintiff in the said suit applied for an order and directions against the defendant Nos. 1 and 2 to convey the suit property in favour of the plaintiff and defendant Nos. 3, 4 and 5 without any encumbrances or any future obligations and directing to do all acts, deeds and things as may be required. The plaintiff also prayed for perpetual order and injunctions against defendant Nos. 1 and 2 from dealing with and/or putting up any construction on the suit property and/or submitting any plan and/or getting any plan sanctioned and/or withdrawal of any plan and approval in respect of the construction work and various other reliefs. In the said suit, the plaintiff filed a notice of motion for injunction against defendant Nos. 1 and 2 from putting up any construction work upon or over the suit property admeasuring 27,185.46 sq.mtrs., from submitting any plan sanctioned etc. The defendant Nos. 1 and 2 filed a detailed affidavit in the said notice of motion and opposed grant of any interim relief. The plaintiff filed rejoinder to those affidavits in reply. The learned trial judge by an order dated 27th July, 2015 allowed the said Notice of Motion No. 2672 of 2014 filed by the plaintiff and granted interim relief which is impugned by the defendant Nos. 1 and 2 in the aforesaid two appeals respectively.
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Mr. Chinoy learned senior counsel for the defendant No. 1 invited my attention to various clauses in one of the agreement entered into between one of the flat purchaser with the defendant No. 1 and also tendered a copy of the brochure and made various submissions about the rights and obligations of the...
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