Case Note & Summary
Background: The case involves a dispute over construction of an additional building 'E' in the 'Eves Garden' housing scheme at Mundhawa, Pune. The petitioner, a partnership firm, acquired development rights over 22,000 sq. m of land and constructed eight buildings with 456 flats. Flat purchasers formed separate cooperative societies. Respondent No. 1, the cooperative society of Building B-1, filed Special Civil Suit No. 664 of 2021 seeking declaratory and injunctive relief, alleging that the promoter had begun constructing a new building without their informed consent, in violation of Section 4 of the Maharashtra Ownership of Flats Act, 1963 (MOFA). Facts: After selling the flats, the petitioner purchased an adjacent plot of 1,000 sq. m in 2014 and obtained a revised sanction plan to construct Building E with 24 flats. The society contended the plan revision and construction lacked consent and affected amenities. The petitioner asserted that individual agreements with purchasers explicitly permitted amalgamation of adjoining land and future layout changes, thus consent existed. Legal Issues: The court framed three issues: (A) whether the plaintiffs had given informed consent for plan revision; (B) whether acquiring additional land and constructing Building E constituted alteration or addition; (C) whether prejudice was caused to plaintiffs justifying injunction. Arguments: The petitioner argued that written consent was given and the project was phased; the society argued that MOFA requires specific informed consent before any plan change. Court's Analysis: The excerpt does not include the court's reasoning or final order. Decision: Not mentioned.
Issue of Consideration
(A) Whether the plaintiffs had accorded their consent to the revision of sanctioned plan and whether the said consent can be construed as 'informed consent' for revision of the sanctioned plan. (B) Whether on acquiring the additional land and after obtaining requisite approvals from the planning authority, construction of building 'E' would amount to alteration or addition? (c) Whether any prejudice is caused to the plaintiffs/flat purchasers in form of amenities or any other count, on the basis of which the Courts below were justified in granting injunction against the petitioner/ promoter?
Law Points
- Informed consent under Section 4 of MOFA
- scope of Section 7A of MOFA
- revision of sanctioned plan
- amalgamation of land
- construction on additional land
Case Details
2021 LawText (BOM) (11) 21
WRIT PETITION NO. 6998 OF 2021
R.D. Soni, V.R. Kasle, Tushar Momaya, Jinesh Shankala, Ram & Co., Sitesh Sharma, Peeyush Rathi, Amit Rathi, Omkar Thombre, Vijay Upadhyay
M/s. Sancheti Properties, A Partnership firm, through its partners Pukhraj Bansilal Sancheti and Kishore Bansilal Sancheti
1. Eve’s Garden B1 Co-operative Housing Society Ltd, through its Members and Representatives (i) Mr.Bhausaheb Sakharam Khodade (ii) Rajendra Nula; 2. Hemant Arvind Chhedda; 3. Dyanoba Nagoji Ingale; 4. The Municipal Corporation of Pune
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Nature of Litigation
Civil dispute concerning construction of an additional building by a promoter without informed consent of existing flat purchasers, allegedly violating the Maharashtra Ownership of Flats Act, 1963.
Remedy Sought
The petitioner promoter sought to quash the injunction order granted by the trial court and upheld by the appellate court, which restrained construction of Building 'E'.
Filing Reason
The original suit was filed by the cooperative society of flat purchasers in Building B-1 alleging that the promoter had revised the sanctioned plan and started constructing a new building without obtaining prior informed consent as required under Section 4 of MOFA. The trial court granted interim injunction in their favour.
Previous Decisions
The Joint Civil Judge, Sr. Division, Pune allowed the application for injunction below Exhibit-5 on 7 July 2021; the Additional District and Sessions Judge, Pune dismissed Miscellaneous Civil Appeal No.155 of 2021 on 23 September 2021, upholding the injunction.
Issues
Whether the plaintiffs had accorded their consent to the revision of sanctioned plan and whether the said consent can be construed as 'informed consent' for revision of the sanctioned plan.
Whether on acquiring the additional land and after obtaining requisite approvals from the planning authority, construction of building 'E' would amount to alteration or addition?
Whether any prejudice is caused to the plaintiffs/flat purchasers in form of amenities or any other count, on the basis of which the Courts below were justified in granting injunction against the petitioner/ promoter?
Submissions/Arguments
The petitioner promoter argued that the flat purchasers had given consent in the individual agreements to amalgamate adjacent land and revise the layout, and that the project was phased with Building E as part of a future phase; thus construction was covered by Section 7A of MOFA and did not require fresh consent.
The respondent society argued that the promoter failed to obtain specific informed consent for the revised plan and new construction, in violation of Section 4 of MOFA, and that the construction prejudiced their amenities and rights.
Judgment Excerpts
The suit was premised on non-adherence to the mandatory provisions of MOFA Act and continuation of the development of the subject lay out in the scheme of 'Eves Garden', contrary to the agreement executed by the promoter/the petitioner with them.
the promoters have started construction of a new building, which is in violation of Section 4 of the MOFA i.e. without obtaining prior informed consent of the purchasers.
the Promoter had purchased 1000 sq.m of land adjacent to the eight buildings ... and on acquiring the said piece of land, the building No. E, to House 24 flats was proposed
Procedural History
Special Civil Suit No.664 of 2021 filed by Eve’s Garden B1 Co-operative Housing Society Ltd. against the petitioner for declaration, permanent injunction, and performance of statutory obligations. The trial court (Joint Civil Judge, Sr. Division, Pune) allowed the application for injunction below Exhibit-5 on 7 July 2021. The petitioner appealed to the District and Sessions Judge, Pune, who dismissed Miscellaneous Civil Appeal No.155 of 2021 on 23 September 2021, upholding the injunction. The petitioner then filed Writ Petition No.6998 of 2021 before the Bombay High Court challenging these orders.
Acts & Sections
- Maharashtra Ownership of Flats Act, 1963: 4, 7A
