Karnik D.G, J.:— Heard for ad interim relief.
2. By this motion, the plaintiffs seek several reliefs such as-(a) a mandatory order of injunction, directing the defendant No. 1 to convey the suit land bearing Survey Nos. 256 and 257 and C.T.S No. 5244 to 5256. of village Ghatkopar-Kirol, Tal. Kurla, Dist. Mumbai (for short ‘the suit land’); (b) the order of injunction, restraining the defendant Nos. 1 to 3 from acting upon the conveyance dated 21st of June, 2006 and/or development agreement dated 8th June, 2004; (c) direction to the defendant No. 4 Municipal Corporation to revoke and cancel the plans sanctioned including one sanctioned on 10th of April, 2007 and to cancel and revoke the permission granting TDR to be used by the defendants Nos. 1, 2 and 3 etc., and injunction to the defendants Nos. 1 to 3 from carrying on any illegal construction; (d) restraining the defendants from removing existing underground water tank and pump room, meant to be used as a common area and facility by the members of the plaintiffs society; (e) a mandatory order of injunction to restore the water pipeline as originally provided; (f) not to interfere with the peaceful use and enjoyment of free access by the members of the plaintiffs to their flats; (g) to restrain the defendants from cutting or allowing to cut various trees; (h) appointment of the receiver and (i) appointment of the Court Commissioner.
3. Defendant No. 1 was an owner of the suit land. As an owner as well as builder and promoter, he decided to develop the suit land. Part of the old structures were demolished and the part of the structure are yet to be demolished. The development was proposed to be made in stages. The building plans were initially sanctioned in the year 1978. A copy of the sanctioned building plan is produced at Exh. ‘I’ to the plaint. The plans were modified on 26th of August, 1987 and the copy of the modified plan is at Exh. ‘J’ to the plaint. There are some further modifications made in the plans to which I would have an occasion to refer a little later.
4. On 15th of September, 1988, the defendant No. 1 entered into an agreement with Smt. Vijayaben Sobhagchand Shah & anr., agreeing to sell to them one flat in the proposed construction. A copy of the agreement is filed at page 56 of the plaint. Similar agreements were entered into with the other prospective flat purchasers. According to Mr. Tulzapurkar, some changes are made in the agreements which have been entered into in the year 2002 or thereafter; however, that changes are not very material. In any event the agreements made with most of the flat purchasers prior to 2002 are similar to the agreement at page 56 of the plaint. The defendant is bound by all the covenants made in those agreements with each of the individual flats owners.
5. Part of the building has been constructed and the flat purchasers who have taken flats in that portion are occupying their respective flats. A Co-operative Housing Society of the flat owners has also been formed, who is the plaintiff herein. The plaintiff society is espousing the cause of itself as well as its flats holder members.
6. After constructing part of the building, the defendant No. 1 decided to entrust its rights to another developer to develop the remaining part. Initially the development rights were agreed to be transferred by the defendant No. 1 to defendant No. 2. Subsequently, the defendant No. 1 with the consent of the defendant No. 2 transferred his development rights to the defendant No. 3.
7. Mr. Vashi, learned Counsel appearing for the plaintiffs submitted that under the Maharashtra Ownership Flats Act, 1963 (for short ‘MOF Act’), the defendant No. 1 is obliged to transfer the entire suit land in favour of the plaintiff society. The conveyance made by the defendant No. 1 in favour of defendant No. 3, being contrary to the provisions of the MOF Act, is null and void and so the plaintiff has sought a declaration to that effect in the suit and also claimed interim relief to that effect in the motion. In my view question of validity of the conveyance cannot be and need not be gone into at the ad interim stage. Without considering the evidence to be adduced by the parties, it would Page: 363not be possible to hold whether the conveyance made by the defendant No. 1 in favour of the defendant No. 3 is legal or illegal. So no ad interim regarding it can be granted. Similarly, consideration of the mandatory reliefs claimed can also wait till the hearing of the motion.
8. Mr. Vashi, learned Counsel appearing for the plaintiff invited my attention to the various building plans at Exh. T to Exh. ‘L’ to the plaint. He strongly submitted that the building plan dated 26th August, 1987, a copy of which is as Exh. ‘J’ was disclosing the names Smt. Vijayaben S. Shah and other as flat holders when they booked their flats. According to him, the defendants are, therefore, bound to carry on construction only in accordance with the building plan at Exh. ‘J’ and are not allowed to carry on any modification in the said plan without the consent of the flat holders. He submitted that with the help of the officers of the defendant No. 4, the defendant Nos. 1 to 3 got the building plans modified and sanctioned on 10th of April, 2007. A copy of the modified building plans is at Exh. ‘L’ to the plaint. He submitted that the defendants were not entitled to modify the building plans nor can they carry on the construction in accordance with the modified plans at Exh. ‘L’ to the plaint. That clearly violates the rights of the flat holders and therefore, by way of ad interim order, the defendants be restrained from carrying on any constructions in accordance with the building plan at Exh. ‘L’ to the plaint.
9. Before I turn to the modification of plans, the copies of which are produced on record, it would be appropriate to refer to the relevant provisions of the MOF Act. Section 7 of the MOF Act, as it stood prior to its amendment by the Maharashtra Amending Act No. 36 of 1986 read as under:
“7.(1) After the plans, and specifications of the buildings as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more fiats, the promoter shall not make—
(i) any alterations in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person; or
(ii) any other alterations in the structure of the building, [or construct any additional structures] without the previous consent of alt the persons who have agreed to take the flats.”
(paranthesis supplied)
10. Section 7 of the MOF Act was amended by the Maharashtra Amending Act No. 36 of 1986. After the amendment, the section 7 reads as under:
“7. After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within three years to be rectified.
(1) After the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make—
(i) any alterations in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person;
(ii) any other alterations in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building.”
(2) (Sub-section (2) being not relevant for this case is not reproduced.)
11. In addition to the amendment of section 7 as mentioned above, the legislature also inserted a new section “7A” into the MOF Act by the Maharashtra Amending Act, 36 of 1986. Section 7-A reads as under:
7-A. Removal of doubt.: For the removal of doubt, it is hereby declared that Clause (ii) of sub-section 1 of section 7 having been retrospectively substituted by Clause (a) of section 6 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) (Amendment) Act, 1986 (hereinafter in this section referred to as “the Amendment Act”), it shall be deemed to be effective as if the said Clause (ii) as so substituted had been in force at all material times, and the expression “or construct “any additional structures” in Clause (ii) of sub-section (1) of section 7 as it existed before the commencement of the Amendment Act and the expressions “constructed and completed in accordance with the plans and specifications aforesaid” and “any unauthorised change in the construction” in sub-sec-Page: 364tion (2) of section 7 shall, notwithstanding anything contained in this Act or in any agreement, or in any judgement, decree or order of any Court, be deemed never to apply or to have applied in respect of the construction of any other additional buildings or structures constructed or to be constructed under a scheme or project of development in the layout after obtaining the approval of a local authority in accordance with the building rules or building bye laws or Development Control Rules made under any law for the time being in force,
12. At this stage it would be appropriate to refer to the object of section 7 and reasons for its amendment and insertion of section 7-A in the MOF Act. Section 7 of MOF Act, as it originally stood, required the promoter, inter alia, not to construct any additional structures without consent of all the flat takers. In (Kalpita Enclave Co-operative Housing Society v. Kiran Builders Pvt. Ltd.), 1987 (1) Bom.C.R 355 : 1986 Mh.L.J 110, this Court held that in view of section 7, a promoter was not entitled to put up additional structures not shown in the original layout plan without the consent of flat takers. That was not the intention of the legislature. In order to get over this unintended consequence which had arisen on account of the decision of this Court in Kalpita Enclave, section 7 was amended with retrospective effect and section 7-A was added. Section 7 was amended and the words “or construct any additional structures” were deleted. New section 7-A was added to further clarify the position that the consent of the flat holders in a building is not necessary in respect of construction in the scheme or layout after obtaining the approval of a local authority in accordance with the building Bye-laws or the Developemnt Control Rules. Section 7(A) in such cases does not enable the intending flat holders to prevent construction of the additional plots in accordance with the said scheme.
13. With this background, I would now examine the building plans. Exh. ‘J’ is the original plan dated 26th August, 1987 and the modified building plan dated 10th of April, 2007 is at Exh. ‘L’. The building plan at Exh. ‘J’ dated 26th of August, 1987 contemplates construction of two buildings namely, ‘A’ and ‘B’. In the present matter, I am not concerned with the building ‘B’. The building ‘A’ consists of three arms or wings and looks like a mirror image of English letter ‘C’. At the top, i.e on the North there is upper arm or wing running east-west. The second arm or wing runs north south and forms eastern part of the building. The lower arm runs east - west and is situate at the southern side of the property. The three arms or wings together makes one building ‘A’. The area statement given in the plan ‘J’ shows that the total area of the land to be 2874.80 sq. mtr.; the permissible F.S.I, is 2558.87 sq. mtr., and the F.S.I, proposed to be consumed by the building is 2490.84 sq. mtrs. In between north and south arms of the building ‘A’ there is an open space shown as recreation ground for the common use of the flat holders. This plan was disclosed to the flat purchasers and the building ‘A’ was to be constructed accordingly. On this basis the flat holders proposed to purchase the various flats.
14. The plan ‘J’ was modified and approval for the modified plan was granted by the defendant No. 4 Municipal Corporation on 10th of April, 2007. The defendants now propose to construct the buildings as per the modified plan dated 10th April, 2007, at Exh. ‘L’. At this stage it may be noted that the lower i.e Souther arm/wing of the building ‘A’ has already been constructed and the flat takers are occupying the flats in the said arm of the building. However, instead of errecting the remaining two arms/wings a separate new building is proposed to be constructed. Further more, the amended plan does not show the building ‘B’ at all and it is not clear what was happened to it. The area statement in the plan Exh. ‘L’ shows the area of the plot to be the same viz. 2874.80 sq. mtrs. but permissible F.S.I is altered and shown as 4567.06 sq. mtrs. and the area of the proposed building area is shown as 4460 sq. mtrs. Thus apart from the modification in building ‘A’ and deletion of two wings (northern and eastern wings) what is clearly visible is that though the plot area remains the Page: 365same, the permissible F.S.I has gone up from 2794.87 sq. meters to 4570. sq. mtrs. and the proposed built up area has gone up from 2490.64 sq. mtrs. to 4460 sq. mtrs. The F.S.I proposed to be consumed has thus increased from 1 to 1.83 sq. mtrs.
15. According to Mr. Tulzapurkar, this F.S.I has gone up because of the modification in the Development Control Rules which permit a developer to acquire transferable rights (for short the T.D.R). According to him, a owner of the land is entitled to buy in the market T.D.R and load it on the proposed construction on the plot. Accordingly the defendants have acquired additional TDR and loaded the same and thereby the F.S.I is increased from 1 to 1.83 sq. mtrs. i.e to say by 1917 sq. mtrs.
16. In (Jayantilal Investments v. Madhuvihar Co-op. Hsg. Sotiety), 2007 DGLS (soft) 26 : 2007 (2) All.M.R 398 : 2007 (9) S.C.C 220 : A.I.R 2007 S.C 1011, the Supreme Court while considering the provisions of sections 7 and 7-A of MOF Act, in para 17 of its judgment has observed as follows:
“The obligation of the promoter under MOFA to make true and full disclosure of the flat takers remains unfettered even after the inclusion of Section 7-A in MOFA. That obligation remains unfettered even after the amendment made in section 7(1)(ii) of MOFA. That obligation is strengthened by insertion of sub-section (1-A) in section 4 of MOFA by Maharashtra Amendment Act 36 of 1986. Therefore, every agreement between the promoter and the flat taker shall comply with the prescribed Form V. It may be noted that, in that prescribed form, there is an explanatory note which inter alia states that Clauses 3 and 4 shall be statutory and shall be retained. It shows the intention of the legislature. Note 1 clarifies that a model form of agreement has been prescribed which could be modified and adapted in each case depending upon the facts and circumstances of each case but in any event, certain clauses including Clauses 3 and 4 shall be treated as statutory and mandatory and shall be retained in each and every individual agreements between the promoter and the flat taker. Clauses 3 and 4 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction etc.) Rules, 1964 are quoted hereinbelow:
“3. The Promoter hereby agrees to observe, perform and comply with all the terms, conditions, stipulations and restrictions if any, which may have been imposed by the concerned local authority at the time sanctioning the said plans or thereafter and shall, before handing over possession of the Flat to the Flat Purchaser, obtain from the concerned local authority occupation and/or completion certificates in respect of the Flat.
4. The Promoter hereby declares that the Floor Space Index available in respect of the said land is square metres only and that no part of the said floor space index has been utilized by the Promoter elsewhere for any purpose whatsoever. In case the said floor space index has been utilized by the Promoter elsewhere, then the Promoter shall furnish to the Flat Purchaser all the detailed particulars, in respect of such utilization of said floor space index by him. In case while developing the said land the Promoter has utilized any floor space index of any other land or property by way of floating floor, space index, then the particulars of such floor space index shall be disclosed by the Promoter to the Flat Purchaser. The residual F.A.R (F.S.I) in the plot or the layout not consumed will be available to the promoter till the registration of the society. Whereas after the registration of the Society the residual F.A.R (F.S.I) shall be available to the Society.
(emphasis supplied)
17. The Supreme Court has held that Clause No. 4 of the model agreement prescribed under the MOF Act and MOF Rules, incorporates the statutory obligation and a promoter is required to declare to the flat takers the floor space index available in respect of the land in square metres and the floor space index which the promoter has utilised. In case the promoter has utilised FSI of any other land or property as a floating F.S.I, he is required to disclose the same to the flat takers.
18. As stated earlier, the defendant No. 1 had disclosed to the flat purchasers that the total F.S.I proposed to be consumed as per the plan at Exh. ‘J’ was 2490.84 sq. mtrs. Now the defendants propose to consume 4460 sq. mtrs. of the F.S.I by utilising float- Page: 366ing F.S.I or T.D.R of another property to the extent of 1970 sq. mtrs. This was not disclosed to the fiat purchasers nor their consent was not obtained for such additional utilisation of the FSI. Prima facie, this could not have been done without consent of the flat takers.
19. MOF Act and Rules also requires the promoter to disclose to the flat purchasers the common areas and facility and amenities, the agreement at Exh. 56 states that the particulars of the common area and facilities are disclosed in the. II Schedule to the agreement. However, the defendant No. 1 failed to incorporate schedule II in the agreement and did not disclose specifically the common areas and facility. One may, therefore, prima facie look to the sanctioned building plan for the purpose of common areas and facilities. The plan Exh. ‘J’ shows recreation ground, which prima facie is common area and facility The plan at Exh. J dated 26th August, 1987 shows that the area of recreation ground to be 315. 93 sq. mtrs. In the new plan at Exh. ‘L’ the area of recreation ground is kept blank. But a bare look of the plan Exh. ‘J’ shows that the area of recreation has been considerably reduced. This proposed modification of reduction in a common area facilities has not been approved by the flat takers though the respondent No. 4 Municipal Corporation has denied that there is change in the recreation area, the approved plan dated 10th April, 2007 does not show or give exact area of recreation ground. In the circumstances, primafacieit appears that the amenities of the flat holders would be reduced if the building is allowed to be constructed in accordance with the modified plan at Exh. ‘L’. In the circumstances, in my view the plaintiffs are entitled to an injunction, restraining the defendants from carrying on construction in accordance with the modified plan dated 10th April, 2007, Exh. ‘L’ as to the plaint or any other plan other than the plan Exh. ‘J’ to the plaint till the final disposal of the motion. Ordered accordingly. The defendants are further restrained from removing existing underground water tank and pump room and preventing ingress and egress to the plaintiff and its members to their flats till the final hearing and disposal of the motion.
20. Mr. Tulzapurkar, learned Counsel for the defendant No. 3 submitted that the operation of this order may be stayed for some time. He submitted that the modified plan was sanctioned in April, 2007 and the construction was started soon thereafter and that the plaintiff and its members were aware of the said construction. Some third party agreements have also been entered by the plaintiffs. Hence, the operation of this order be stayed for some time to enable the defendants to move the appeal Court. Operation of this order is stayed for the period of two weeks subject to the condition that the plaintiffs shall disclose in 48 hours on affidavit the third party agreements and that they shall not create nor agree to create any new third party interests or agreements during the said period.
21. All other reliefs in the motion would be considered at the interim stage.
22. Ordered accordingly.
23. Ordere accordingly.