entered into an agreement with the developers, i.e. Vaidehi,
for redevelopment of its property. The redevelopment
envisages construction of the Society’s building to
accommodate its members and also construction of
building/s of flats/premises to be sold to outsiders. The
agreement authorizes or entitles the developers to
construct such building/s and sell flats/premises therein to
outsiders. Such authority or entitlement is to the
developers’ account and in their own right and as an
independent contractor. If in exercise of such authority or
entitlement, a building is constructed by the developers, it
cannot be said that such building is caused to be
constructed by the Society within the meaning of Section
2(c) of the MOFA. {Para 88}
89. Any other interpretation would lead to anomalous
consequences, which could never have been contemplated
by MOFA. The owners of lands entering into agreements
for sale or development agreements with
promoters/developers would be held as being subject to all
liabilities of a promoter, such as liability of disclosure of
plans and specifications, outgoings etc. under Section 3 of
the MOFA, entering into agreements in accordance with
Section 4, giving possession of flats and suffering the
consequences of Section 8, forming co-operative societies
of flat purchasers under Section 10 and so on. This would
be plainly inconceivable.
90. Prima facie, thus, there is no case to treat the
Society, who is merely in the position of an owner vis-avis
the third party purchasers, as a ‘promoter’ within
the meaning of MOFA and foist the obligations of a
promoter on the Society in relation to the purchasers.
91. Besides what is discussed above, there are many
other difficulties in the way of many of these third party
purchasers. In the first place, it now transpires from the
various proceedings that their vendor, Vaidehi, has
proceeded to allot an area far in excess of its entitlement,
which was merely 2,53,500 sq.ft. FSI to start with and
thereafter restricted to 57050 sq.ft. (i.e. after the Rustomjee
Agreement). In fact, what Vaidehi appears to have dealt
with is an area far in excess of even the total FSI (at the rate
of 2.4) available on the entire land. Secondly, the individual
transactions are evidenced only in a few cases by registered
agreements with Vaidehi. Many transactions are contained
in unregistered agreements or even allotment letters which
are not even stamped. Many of these transactions appear to
be simply financial arrangements. Each individual case of a
third party purchaser would thus be subject to different
considerations based on the entitlement of Vaidehi at the
relevant point of time and the nature and incidents of the
individual transaction. But we are dealing here with the
rights of the individual purchasers vis-a-vis the Society
and Rustomjee claimed through Vaidehi and not their
rights qua Vaidehi. All these purchasers certainly have
independent rights to claim damages against Vaidehi,
peculiar to their individual cases, but they have prima
facie no right to claim anything from the Society and
Rustomjee, much less specific performance of their
individual agreements. In the premises, the individual
features of their respective cases, as noted above, have no
relevance to our discussion in this group of Motions and
need not be discussed any further. Even the best placed
amongst them have no leg to stand on as against the Society
or Rustomjee.
92. That brings us to sum up the result of the above
discussion on the prima facie case on merits of individual
stakeholders. Prima facie, it is clear that Vaidehi has
committed breaches of the Society Development
Agreement and that the termination of the Agreement by
the Society was legal and proper. Vaidehi has not made out
any case of its readiness and willingness to perform its
obligations under the Society Development Agreement.
Vaidehi is not entitled to specific performance of the
Society Development Agreement or restrain the
development of the suit property by the Society or
Rustomjee. The Rustomjee Agreement and its confirmation
by the Society by the Confirmation and Supplementary
Agreements as well as further Agreement dated 29 January,
2011 between the Society and Rustomjee are valid and
proper. Members of the Society opposing the development
through Rustomjee are not entitled to any interim relief
either on the basis of the aforesaid agreements being in
breach of the Society Development Agreement or on the
basis of breach of bye-laws or contravention of the State
Government circular dated 3 January, 2009 or on account
of the alleged non-performance of the offer letter by
MHADA or the booklet or directives of MHADA or indeed
on account of any alleged FSI violation or usurpation. The
decisions of the Society in connection with the present
dispute are prima facie taken bona fide and none of the
challenges of the members opposing redevelopment are
prima facie sustainable. None of the third party purchasers,
who claim through Vaidehi under their respective
agreements for sale/allotment letters, have any case for
specific performance of their respective agreements against
the society or Rustomjee. None of these purchasers has
any enforceable right under MOFA against the Society
or Rustomjee.
93. Even the considerations of balance of
convenience and irreparable injury clearly weigh in
favour of the Society and its members, who support the
redevelopment project. The fundamental basis or rather
the very raison d’etre of the entire redevelopment
project is the need for housing of 480 members of the
Society. These members have already surrendered their
tenements to enable the Society to carry out the
redevelopment project first through Vaidehi and later
through Rustomjee, as noted above. Since 2006, these
members have been living in temporary alternative
accommodations. The buildings on the suit property
occupied by these members have since been demolished
and a rehab building for their permanent alternative
accommodation is under construction. The
development of the free sale component is inextricably
linked to the construction of the rehabilitation
component. The cost of the construction of the
rehabilitation component has to be necessarily funded
from and out of the development and sale of the free sale
component. Any relief granted to either of the
stakeholders, namely, Vaidehi or the members opposing
the redevelopment project or the third party purchasers,
who claim through Vaidehi, will necessarily impact the
construction of the rehabilitation component adversely
and jeopardize the members’ right to their permanent
alternative accommodation. The members cannot be
asked to wait indefinitely for years for getting something
which they are legally entitled to and which legal
entitlement is not even questioned by any other
stakeholders.
(Emphasis added)
11. We are in respectful agreement with all these findings on law.
We emphatically reaffirm Vaidehi Akash.
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1776 OF 2023
Deepak Prabhakar Thakoor & Ors Vs Maharashtra Housing and Area Development Authority (MHADA) & Ors
CORAM: G.S. Patel & Kamal Khata, JJ.
DATED: 12th October 2023
