Saturday, December 25, 2010

The Maharashtra Ownership Flats Act 1963

v   Injunction against further construction---Plaintiff purchasers of flats from developer seeking injunction against developers from making further constructions on the open space on the ground that full F.S.I. has already been utilized by them and that defendants be directed to get the society registered under M.O.F. Act---Held, agreement shows that development has to be done phases. As per figures furnished by developers enough open space more than required to be left has been left out. Plaintiff can only have grouse if there is change in the plans of their buildings. They also cannot insist that society must be registered because as per agreement society will be registered only after full development of land has been completed
v   In the present case it has been stated by the counsel at the bar that the co-operative society has not been formed due to the male fide intention of the defendants. The plaintiffs on their did make an application for forming a co-operative society .But their request was not acceded because all the agreement were not registered. This application has been withdrawn, which the counsel states will be renewed after all the agreement are registered. It has also been submitted that the present suit has been filed to compel the defendants to comply with the provisions of MOFA.Unedr the provisions of this Act, it is necessary for the defendants to execute the conveyance in accordance with the agreement executed under section 4 and if the period for the execution of conveyance is not agreed upon, then the same shall be executed within the prescribed period. The prescribed period according to the counsel is 4 months from the date when the minimum number of 10 have purchased the flat. The defendants have deliberately avoided forming the co-operative society and are also avoiding executing the conveyance. With regard to the report of the commissioner, it is submitted that the report is not in accordance with the sanctioned plan. Thus, it is liable tobe ignored. The report of the commissioner, according to the learned counsel appearing for the plaintiff has used the parking space to release the recreation area. Some of the area used for parking spaces has been shown as the recreation area. After the dismissal of the appeal, the plaintiffs themselves had engaged an Architect who has given his report, the report submitted by the commissioner is not only against the sanctioned pals, but also against the D.C. Regulations. In view of all this, it is submitted that the defendants cannot be permitted to construct and that the other relief’s claimed in the Notice of Motion deserve to be allowed. The leaned Counsel appearing for the defendants has, however, submitted that the rights of the plaintiffs flow from the agreement which have been executed between the parties. According to him, the conveyance is only to be executed on completion of the project. Since initially the project was conceived as phase programme unless all the project is completed, the conveyance cannot be executed. Further more referring to the various clauses of the agreement, counsel submits that there is no need 0f any consent for making any alterations, amendments and modifications in the development of the suit property. Not only under the agreement it is submitted, but also under section 7-A of the MOFA. The defendants are at liberty to make any additions or modifications or to raise any further construction on the suit property. The plaintiffs will have the right to the open spaces and the recreational ground only on the execution of the conveyance after formation of the co-operative society. The very same objections raised by the plaintiffs were also raised before the Division bench. Import of the aforesaid objections, the Division Bench has accepted the report. Merely because the plaintiffs have obtained another report from another Architect would not detract from the authenticity of the report submitted by commissioner. So far as the complaint with regard to the shortage of open space is conceded, it is submitted by counsel for the defendant that the open space is in conformity with the Regulation 23 of the D.C Regulation. In fact what has been provided is in excess of what was required. Under the Regulation, 20%of the area was required to be kept as open space. Even from the report submitted by the Architect of the plaintiff it is obvious that the area kept as open space is more that what is required. The plaintiffs, it is obvious that the area kept as open space is more then what is required. The plaintiffs have sought to builds up a case on the ground that the area occupied by the swimming pool is not the to be included in the recreation area. The plaintiffs have also side that the area required for providing access to the swimming pool ought also not to by included in the recreation area. Referring to Regulation 23(a),(g)(ii)(d), it has been  state that the  recreation area includes the structures such as swimming pool and allied  structures. In any even, it is submitted that the plaintiffs can hardly complain at this stage. Court in agree with the submissions made by the counsel for the defendants. A perusal of the agreement itself would show that the plaintiffs were aware that the plot had to be developed in a phased manner. this is so stated in Clause (1)of the agreement. In Clause (2), the plaintiffs had agreed that the developers shall have absolute discretion from time to time to amend or alter the building plan and to amalgamate the property with any other property and to sub-divide the same. The plaintiffs also irrevocably agreed and give their consent to the developers carrying out amendments, alterations, modifications in respect of the building, and to put up additional structure/ construction thereon. The only eventuality, the defendants have to obtain consent in writing of the flat purchasers was in respect of any variation or modification in the building plans which may adversely affect the premises agreed to be purchased by the purchasers. thus, the restriction on the defendants was only if any alternation was made with regard to any particular flat purchased by a particular person. a perusal of Clause (24) and (26) shows that the conveyance is not to be executed till the whole property is transferred to the co-operative societies. it is also provided that the conveyance shall be executed only after the entire property described in the schedule is fully developed. There is no merit in the submissions of the learned Counsel appearing for the plaintiff that since all the FSI has been utilized, the suit property has to be treated as fully developed. If that is so, there was no question of having an7y apprehension that the defendants would be able to build on the open green space. it is well-know to all the parties that extra FSI will becomes available in the event the area which has been reserved as recreational ground is acquired by the BMC. Unless and until the conveyance is executed in favour of the plaintiffs, they have no right, title or interest in any open space. Harsharansingh Pratapsingh Gujral & others v/s Lokhanadwala Builders Ltd. & other 1998(1) Bom.C.R. 516; 1998(1) All.M.R.560

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