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CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 732 OF 2023
1. Haresh V. Kagrana HUF )
Through its Karta Mr. Haresh V. Kagrana )
Having address at Office No. 1, Ground )
Floor, New Milan Co-op Hsg. Soc. Ltd., )
Plot No. 71/D, Saraswati Road, )
Santacruz (West), Mumbai – 400054 )
2. Virendra Desai )
Having address at Flat No. 2, Ground )
Floor, New Milan Co-op. Hsg. Soc. Ltd., )
3. Vishpala Parthasarathy (Deceased) )
Through Legal heir )
(3a) Rhea Parthsarathy )
Age: 39, R/o. 1201/1202, )
Vinayak Angan, Old Prabhadevi Road )
Prabhadevi, Mumbai – 400025 )
4. Hetal Bhavsar )
Having address at Flat No. 4, Ground )
5. Pradip Soni )
Having address at Flat No. 13, 3rd
Floor )
6. Geeta Tolia )
7. Sanjay M. Tolia )
8. Manish M. Tolia ) akn 1/11
Having address at Flat No. 14, 3rd floor, )
New Milan Co-op. Hsg. Soc. Ltd., )
Santacruz (West), Mumbai – 400054 ) ..Appellants.
Limited, a Cooperative Housing Society duly ) incorporated and registered under the )
Maharashtra Cooperative Societies Act, )
1960, having address at Plot No. 71/D, )
Saraswati Road, Santacruz (West), )
Mumbai – 400054 )
2. The Hon. Chairman of New Milan )
Co-operative Housing Society Limited, ) having their address at Plot No. 71/D, )
3. The Hon. Secretary of New Milan )
4. The Hon. Treasurer of New Milan )
5. M/s Govind Infratech )
Padmanabh, M. G. Road, Opp. Godbole )
Hospital, Thane (West), Mumbai – 400602 ) ...Respondents
***
Mr. Rahul Soman a/w. Mr. Rahul Jain, Mr. Suyash More for Appellants.
Mr. Atul Damle, Senior Counsel i/b. Mr. Rohit Joshi, for Respondent
Nos. 1 to 4.
Mr. Jayesh Joshi for Respondent No. 5. akn 2/11
(IN CHAMBER)
JUDGMENT
1. Learned Counsel for parties were heard finally on 09/12/2024 and 19/12/2024 and the matter is placed today for passing order.
BACKGROUND
2. Appellants are the Original Plaintiffs in S.C. Suit No. 1100 of 2023 filed against the Respondents/Defendants i.e. the housing Society and its office bearers alongwith the Developer. The suit is filed seeking mandatory injunction directing Respondents to disclose the basis on which the area of flats are calculated in the Respondent No. 1-Society during the process of redevelopment. A prayer is also made seeking directions to the Respondents to calculate the area of flats in the Respondent No. 1-Society strictly on the basis of sanctioned plan or any other duly validated documents of the competent Planning Authority. An alternate prayer is made seeking appointment of the Court Commissioner to measure the actual area of individual flats.
3. The Appellants filed Notice of Motion No. 1517 of 2023 seeking interim injunction restraining Respondents from proceeding with redevelopment work without disclosing the basis of area calculations or without ascertaining the area of individual flats on the basis of sanctioned plan or without ascertaining areas through the Court Commissioner.
4. At the outset, learned Counsel for the Appellants has fairly submitted that another prayer in the motion, for restraining development work without akn 3/11 ascertaining financial and technical capabilities of the Respondent No. 5- Developer, is not being pressed, at this stage.
5. By the impugned order dated 20/07/2023 passed by the City Civil Court, Borivali Division, Dindoshi, Mumbai, the said notice of motion has been dismissed.
SUBMISSIONS
6. Learned Counsel Mr. Soman appearing for the Appellants submitted that the subject matter construction of the Respondent No. 1-Society is of the year 1964 and there are total 14 flats therein. It is submitted that Appellants are the 6 members out of total 14 members, who have disputed the area calculations in respect of their ground floor and 3rd floor flats. He submitted that flat nos. 1 to 4 are on the ground floor having Otlas and flat nos. 13 and 14 are having attached terrace to the said flats. He submitted that area calculations basis which the re-development is proposed, does not consider the areas of either Otlas or attached terraces in these 6 flats, thereby reducing the area entitlement of the Appellants and this is the grievance of the Appellants. He submitted that when the suit was filed, sanctioned plan of the society building, was not available, however, during the pendency of the suit / motion, the same was made available and is on record.
7. He submitted that if the sanctioned plans of ground floor and 3rd floor are compared with sanctioned plans of 1st and 2nd floors, then it is apparent that the areas of 4 ‘Otlas’ and 2 ‘attached terraces’ are available with flats on 1st and 2nd floor also, but in the form of ‘balconies’. He submitted that these flats viz. flat nos. 5 to 12 are on 1st and 2nd floors and for them areas of their balconies are included in their area calculations for redevelopment, but, the akn 4/11 Appellants have been denied the entitlement of areas covered under their respective Otlas and attached terraces. He submitted that this is a peculiar situation where interpretation of the usable area for the purpose of present day re-development, as per present Development Control Rules, will have to be considered. He submitted that since both, Otlas and attached terraces of Appellants’ flats are shown in the sanctioned plan, they are entitled to the said areas being calculated as usable area for the Appellants. He has drawn the attention of this Court to the sanctioned plans of the building in question. He contended that total area of flats based on actual area in possession of members tally with the area set out in the offer letter dated 16/02/2022 by the Developer.
8. Learned Senior Counsel Mr. Damale, appearing for the Respondent Nos. 1 to 4 – Society and Mr. Joshi for the Respondent No. 5 – Developer, on the other hand, opposed the Appeal. They submitted as under. That Otlas and attached open terraces for the Appellants’ flats are not exclusive areas but they are common amenities/areas. The Appellants have not produced agreements on record. That only areas as per sanctioned plan can be taken into consideration. That the argument about applicable Development Control Rules was not advanced before the Trial Court. That Appellants have been issued notices by the Respondent-Society for encroachment over the said areas of Otlas and attached terraces. That in the final offer given by the Respondent–Developer, it is clearly mentioned that the carpet area of member’s flats given by the society should match with the approved plans by Municipal Corporation of Greater Mumbai (‘MCGM’ for short). It is submitted that even in the written statement, the society has taken a clear stand that the area can be as per building plan sanctioned by the MCGM. That it is also a stand of the Respondent-Society that the Appellants concerning ground floor flat nos. 1 to 4 are illegally using their flats for akn 5/11 commercial purposes and other Appellants have enclosed the attached terrace portion appurtenant to their respective flats. He submitted that if the chart of area comparison (Exhibit-J, page no. 450 in the Appeal paper book) is considered then it is obvious that the areas mentioned in the Development Agreement column are as per the sanctioned plan.
9. On a specific query by the Court, learned Senior Counsel for the Respondent – Society has fairly accepted that none of the Appellants were issued any notices about unauthorized use of the Otlas and attached open terrace in the past. He also submitted on instructions that currently the Development Agreement is executed in favour of the Respondent No. 5- Developer during the pendency of this Appeal and the process of obtaining the Commencement Certificate is going on.
10. In rejoinder, learned Counsel for the Appellants submitted that attached terraces to the flats on 3rd floor are exclusive terraces of the respective flat owners and access to such terraces are exclusively through the respective flats, and therefore they are not common areas of the society. He submitted that the society has its own common terraces which are available for all members. He asserted that the terrace areas of the subject matter flat nos 13 and 14 were and are always in exclusive use and occupation of the respective flat members.
11. In this background, it is submitted by the Appellants that the motion could not have been dismissed, and the development cannot be permitted to proceed unless the area entitlement of the Appellants in respect ground floor flats with Otlas and 3rd floor flats with attached terrace is sorted out. He submitted that the society building is situated in prime locality on Saraswati Road, Santacruz (West) and differences in the area entitlements affect their valuable rights being not considered. He submitted that the Appellants are akn 6/11 only seeking their fair entitlement to the sanctioned area as per plan sanctioned by MCGM. He submitted that the Appellants are not seeking even a square foot beyond what is shown in the Otlas and attached terraces in the sanctioned plan of Appellants’ flat nos. 1 to 4 and 13 and 14.
REASONS AND CONCLUSIONS
12. I have carefully considered the submissions and perused the record.
13. This is a peculiar case where the subject matter building was constructed way back in 1964 as per the sanctioned plan. This is not some unauthorized construction of which area entitlement or area benefit is being asked for. From the perusal of sanctioned plan of ground and 3rd floor, it can be clearly seen that areas of Otlas on the ground floor and areas of attached terraces on the 3rd floor, are attached to the Appellants’ flat nos. 1 to 4 and 13 and 14 respectively. They are not separate areas having common elevation. These same areas can be seen available for rest of the flats of 2nd and 3rd floor as ‘balconies’ and which areas are admittedly included for redevelopment for members occupying the flats of 1st and 2nd floor. It was submitted orally that the society has issued notices alleging unauthorized use or encroachment over subject matter Otlas and attached terraces, however no specifics are pointed out.
14. The relevant question here is not of ‘user’ but ‘whether the areas of Otlas and attached terraces shown in sanctioned plans can be entitlement of respective flat owners / members on ground and 3rd floor’ ?
15. From bare look at the sanctioned plan of 3rd floor, it can be seen that the areas of terrace claimed by Appellants are such terraces which are attached terraces and not common terraces. It can be seen from the sanctioned plan that access to the these 2 attached terraces are from akn 7/11 respective flats and not from common passage or common areas. So also it can be seen from the sanctioned plan that 4 Otlas on the ground floor of flat nos. 1 to 4 are also Otlas attached to those flats with same elevation and not earmarked as common amenities area or common area.
16. Once it is seen that these Otlas and attached terraces are shown in the sanctioned plan as exclusive to respective flats, this Court fails to understand how its lawful advantage cannot be given to the respective flats owners.
17. During pendency of the Appeal, the Appellants have filed additional affidavit affirmed on 12/06/2024. The Appellants have placed on record the report dated 03/06/2024 by an architect viz. M/s. 3 Dimensional Consultants LLP, to whom specific queries were raised by Appellants about the status of Otlas on the ground floor as well as attached terraces on the 3rd floor, comparing the same with balconies on the 1st and 2nd floors. The Respondents have not filed any affidavit-in-reply to the original Appeal from Order/Interim Application or to the said additional affidavit.
18. Perusal of the said report would show that as per approved plans, neither Otlas on the ground floor nor balconies on the 1st and 2nd floor nor the attached terraces on the 3rd floor are computed in FSI as per the calculations given in the plans. If that be so, then the three categories of areas – Otlas, balconies and attached terraces stand on the same footing. Then if the Respondent-Society and the Developer is giving benefit of areas of the balconies to the other members on the 1st and 2nd floors, this Court fails to understand why similar benefits of Otlas and attached terraces cannot be given to the Appellants. This action of the Respondent-Society and the Developer apparently seems to be giving different treatment to the flats on the 1st and 2nd floor as compared to flats on the ground and 3rd floor. Nothing is brought to the notice of this Court by the Respondents indicating akn 8/11 that Otlas on the ground floor or attached terraces on the 3rd floor were used as common areas. Mere allegation that they are common areas or issuance of some notices alleging its unauthorized user / encroachment etc. by the Society to some members, cannot change the status of the sanctioned plan treating Otlas, balconies and open terraces on the same pedestal. Therefore, strong prima facie case is made out in favour of the Appellants.
19. Learned Counsel for the Appellants is therefore right in submitting that if the plans of all floors are considered together, then areas for other flat owners on the 1st and 2nd floor by way of balconies are being considered, however, the Appellants’ areas are being reduced to the extent of Otlas and attached terraces. I see no basis for such differential treatment amongst the members of the same society. At the cost of repetition, it must be noted that areas under dispute of Otlas and attached terraces are part of sanctioned plan and they are not unauthorized construction.
20. In that view of the matter, if the re-development is permitted to continue without considering the concerned areas of Otlas and attached terraces, as area entitlements of the Appellants, they are bound to face great and irreparable loss, as in the city like Mumbai, loss of a few square feet also affects the actual available area after the re-development as also the potential of such re-developed area in future, at the time of sell.
21. Viewed in the light of what is narrated above, I find balance of convenience also tilting in favour of the Appellants.
22. The Appellants have taken a clear stand that they are not opposing the re-development. In fact the necessary development agreement is already executed and the Respondent No. 5-Developer is in the process of obtaining the Commencement Certificate. Once the development process is not akn 9/11 opposed, no malafides can be found in the stand taken by the Appellants in the peculiar facts of this case.
23. Perusal of the impugned order shows that the Trial Court was conscious of the fact that admittedly there is a variation in the carpet area of the Appellants’ flats in the MOU and the Development Agreement and that in the Development Agreement, the area of Appellants’ flats have been reduced. The Trial Court has held that there is nothing to support the Appellants’ contention that the process of re-development is illegal or nontransparent and therefore, the aspect of prima facie case is found against the Appellants. Ex-facie, the Trial Court has not considered about any justification for reduction of area. The Trial Court has not considered that the areas of Otlas and attached terraces are authorized and clearly shown in the sanctioned plan. In such circumstances, when these areas are usable areas by the concerned flat owners exclusively, then the basis for not considering that areas, ought to have been considered, which is not done. In my considered view therefore, this is a fit case to interfere with the discretion exercised by the Trial Court.
24. In the aforesaid facts and circumstances, the impugned order cannot be sustained and requires interference. Hence, the Appeal from Order is allowed in the following terms. (a) The impugned order is quashed and set aside. (b) Pending the suit, the Respondent Society and the Respondent Developer are restrained from proceeding with the re-development work without considering the areas of Otlas and attached terraces in respect of flat nos. 1 to 4 and 13 and 14 of the Appellants. akn 10/11
(c) The suit shall be decided in accordance with law, without being influenced by observations in this order. All rival contentions on merits are kept open.
25. The Appeal from Order and pending Interim Application are disposed of in above terms. No costs. this order. (M. M. SATHAYE, J.) akn 11/11