Whether third-party flat purchasers in a redevelopment project from developer can claim specific performance of contract from Co-operative society?

The Society is the owner of the property and has

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

ORDER (per GS Patel J):-

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Whether Occupier Of Flat is Entitled To Transit Rent For Period Of Dispossession During Redevelopment?

The fact remains that as respondent no. 3 is in possession of the tenement in question and would now be handing over possession of such tenement to the petitioner/society. Hence considering the consistent view taken by this Court in Heritage Lifestyles and Developers Pvt. Ltd. vs. Amar-Villa Co-Operative Housing Society and others MANU/MH/0380/2011 : 2011 (3) Mh.L.J. 865 and in Saikripa Co-operative Housing Society Ltd. V/s. Osho Developers & Ors.1, the party who is dispossessed, would be entitled to the transit rent as it is such party who is put to hardship.{Para 9}

 IN THE HIGH COURT OF BOMBAY

Commercial Arbitration Petition (L.) No. 4301 of 2022

Decided On: 16.03.2022

Maniar Associates LLP  Vs. Vijay Niwas Co-op. Hsg. Soc. Ltd. and Ors.

Hon'ble Judges/Coram:

G.S. Kulkarni, J.

Citation: MANU/MH/1454/2022

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Whether it is permissible to club private land and Municipal Corporation land for declaring it as a slum area to approve a slum rehabilitation scheme?

 It is the appellants’ case that a total of 124 families
occupied dwellings in the slums existing over said plots. According
to Mr. Parikh the respondent authorities committed error of law in
treating the slum area over municipal plots and those over private
plots as one slum area. This, according to Mr. Parikh, deprived the
slum residents over private plots of having their own redevelopment
activity limited to private plots as per the wishes of 70% of its
occupants. As per his submission, by illegally declaring a common
slum area over two different kinds of lands, one owned by municipal
authority and the other by private persons, the rights of the
petitioners to have their own say has been diluted and adversely
affected. In other words, the major grievance of the appellants is
that the respondents have wrongly treated that there exists a
consent for redevelopment from 70% of the occupants. Such claim,
according to appellants, must be rejected and the appellants should
be allowed to have the redevelopment through a cooperative of occupants of private plots exclusively. 

 26. In view of discussions made above and on finding merit in the

submissions advanced on behalf of respondents we record our
agreement with the views expressed by the High Court that there is no illegality in clubbing of private land and Municipal Corporation land for declaring a contiguous area as a slum area for the purposes of approving a slum rehabilitation scheme for such area.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9363 OF 2011

Balasaheb Arjun Torbole  Vs The Administrator & Divisional Commissioner


SHIVA KIRTI SINGH, J.
Citation; (2015)6SCC534, 

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Can a development agreement signed by the Chairman of Society be binding upon the non-signatory member of society?

This is the point of law raised in opposition. The submission is that the development agreement and its arbitration clause cannot possibly bind a non-signatory, namely, Kondvilkar. Reliance is placed on the decision of the Supreme Court in Indowind Energ Ltd v Wescare (I) Ltd & Anr., 2010 5 SCC 306.  but this decision lends no support to the argument in question because this was not a case where one of the parties sought to be bound by the agreement was a member or affiliate of a signatory.

Then in paragraphs 21 and 22, the Court said:

“21.It is to be noted that once the person becomes a member of the Co-operative Society he loses his individuality with the Society and has no independent rights except which is given to him by the statute and bye-laws. Hence, objection raised by the respondent nos.3, 4, 6 and 7 that there is no privity of contact between them and petitioner, is not maintainable.

24.This again was a question of a development agreement between a developer and the society and of some members saying that they were not bound by it, not having signed, and opposing the development. The Division Bench considered a large body of law and the argument that the dispute between the developer and the individual descending member was not arbitrable. In paragraph 18, the Division Bench said that it had no hesitation in taking the view that since the dissenting persons were members of the society and held flats in the society they were bound by the decision of the general body of the society as long as the decision is in force. This puts the matter exactly in perspective; and this is why I noted at the forefront the importance or signifcance of the 2nd Respondent never having even attempted to challenge the general body decision. In Girish Mulchand Mehta the dissenting members had not challenged the decisions of the general body and the Division Bench said that the general body ‘is supreme’ in so far as redevelopment of the property in question or of appointing of the developer is concerned. The overwhelming majority approved the appointment of the developer. These found voice and incorporation in the development agreement, and then the Division Bench said that the decision and acts of the society would bind the dissenting members unless the resolutions were quashed and set aside by a forum of competent jurisdiction.

REPORTABLE

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

ARBITRATION PETITION (L) NO. 108 OF 2021

Chirag Infra Projects Pvt Ltd  Vs Vijay Jwala Coop. Hsg Soc Ltd & Anr

CORAM:

G.S. PATEL, J

DATED: 12th March 2021

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Whether Wife can demand flat in redeveloped building claiming that she had vacated premises as per S 95A notice of MHADA?

Smt. Pusalkar has argued before us in-person that she was removed from her matrimonial home through the statutory mechanism contained in Section 95A of the 1976 Act, which bore the threats of penal measure and summary eviction process. But this was during the time the decree of judicial separation remained operative. She traces the root of her ‘dishousing’ to a notice dated 10th July 2000 (bearing no. MBR & RB/FN/GN/2136 of 2000) issued by the Board under the 1976 Act. Her case is that it is composite statutory obligation of MHADA, the builder and her husband to rehouse her in her matrimonial home. It is a fact that the said respondents functioned under a statutory scheme while redeveloping the property, commencing from approval of the development scheme, vacating the old building and re-entry into the allocated portion of the redeveloped premises by her husband’s family. The appellant was also dishoused from the said building under that scheme. But in our opinion, when a builder has discharged his obligation by accommodating the original owners in the redeveloped

portion as per such a scheme, a lady married into that family would not be entitled to invoke the writ jurisdiction of the High Court to enforce her right to matrimonial home citing the provisions of the said statute, if her husband does not permit her to reside in the allocated portion. She does not have any independent claim on title or interest to that property having its genesis in that statute. Her claim of right to reside in her matrimonial home is sought to be projected by her as collateral to the statutory right of her husband to be rehoused or rehabilitated in the new building. But her right to reside in her matrimonial home stands detached from and is independent of the statutory scheme under the said Act. Neither MHADA, nor the builder can have any further legal obligation to rehouse her. She is staking her claim as a constructive beneficiary of the redevelopment scheme. But our opinion is that the right she is seeking to enforce, though flows from a set of events on the basis of which her husband can claim rehabilitation, is actually anchored to an independent legal principle under the Family Law. We accept that she was an occupier under Section 2 (25) of the 1976 Act, but such occupier status was dependent upon her husband’s independent right as part owner of the property. Her right flowing from her matrimonial status cannot get diffused with her right of rehousing or rehabilitation under the statutory  scheme. Her right to reside in her matrimonial home does not flow from the 1976 Act.

Though she was dishoused as an occupier applying the provisions of the 1976 Act, claim of her rehousing is based on her status as wife of the respondent no. 8. In our opinion, such claim has to be adjudicated upon by the Civil Court or the Family Court or any other forum the law may prescribe. Such right of the appellant cannot be diffused with the right of her husband under the 1976 Act, whose family property, part of which he is the owner, has been reconstructed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7231 OF 2012

AISHWARYA ATUL PUSALKAR Vs MAHARASHTRA HOUSING & AREA DEVELOPMENT AUTHORITY 

ANIRUDDHA BOSE, J.

Dated: 27 April, 2020.

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Whether landlord should have funds in cash for getting eviction of tenant for redevelopment of tenanted premises?

The learned Counsel for the tenants/defendants mainly harped on the conditions in Section 16(6) of the Maharashtra Rent Control Act, which are required to be complied with by the landlord strictly. The learned Counsel contended that as per the condition (a), no decree for eviction shall be passed unless the Court is satisfied that the necessary funds for the purpose of the erection of new building are available with the landlord. The Courts below have noted that as per the oral evidence on record, two sons and other family members of the plaintiff had actually an amount of Rs. 6 lakh in their bank accounts when the suit was filed. Besides that the Yogiraj Sahakari Patsanstha had given letters Exhibits 45 and 46 that the society had decided to give financial assistance of Rs. 25 lakh to each of the plaintiffs namely, Pandharinath and Vithal, who are the two sons of the original landlord. It shows that besides cash of Rs. 6 lakh with them, the plaintiffs had assurance of financial assistance of Rs. 50 lakh from the co-operative society. As per the estimate submitted by the plaintiff, cost of construction of tenements for the tenants admeasuring 1250 sq.ft. will be Rs. 11,50,000/- and for remaining construction cost is Rs. 33 lakhs. Taking into consideration the estimated cost, the plaintiffs have made sufficient arrangement for meeting the cost of construction. The learned Counsel for the tenants vehemently contended that as per the Clause (a) of Sub-section (6), the funds should be actually available with the landlord. I am unable to accept this contention. The words "necessary funds are available" only mean that the landlord should be in a position to arrange funds for the purpose of demolition of old structure and construction of new building as per the plan within stipulated period of fifteen months. It is not necessary that all the funds should be available with landlord in hard cash and he should be in a position to show that amount to the Court at the time of trial. Nowadays large projects for construction of buildings as well as industries are taken up with assurance of financial aid or assistance from the financial institutions or banks. Therefore, I find no substance in this contention of the learned Counsel for the tenants.

IN THE HIGH COURT OF BOMBAY

Civil Rev. Appln. Nos. 564, 565, 573 and 574 of 2007

Decided On: 13.12.2007

 Kisan Vanaji Satpure  Vs. Baburao Jakhuji Wakankar and Ors.

Hon'ble Judges/Coram:

J.H. Bhatia, J.

Citation: 2008(2) Bom CR 126

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Whether government is liable to provide transit accommodation in case of demolition of dilapidated building?

We cannot sidetrack the difficulties of such old legal tenants of such old chawls/buildings owned by poor landlord/owner who are unable to commercially exploit the land property but, as stated to be under obligation to provide temporary alternate accommodation till the construction/development of the dilapidated, dangerous buildings on the land. Such statutory or otherwise legal tenants/occupants cannot be treated on lower footing than the unauthorised or authorised slum dwellers/occupants on Government or local body's land or property, specially when the urgent situation of compulsory razing of such dilapidated old buildings crops up. The State or local authorities are willing to provide such occupants, dwellers/tenants temporary and/or permanent alternate accommodation as recorded in earlier orders (supra). They have permitted various settlements for the same.

17. All human beings problems/difficulties just cannot be overlooked when it comes to vacation or eviction of compulsory leaving of home/premises, even for want of development of the property by the developer/owner or the society itself. The cooperation and settlement is the solution. The State or local bodies having once decided to provide temporary or permanent shelter with all facilities, as recorded above, the similar policy and/or housing policies, should be, on certain conditions and taking note of the circumstances for such poor tenants/occupants, required to be framed. Therefore, this Guideline No. 3 for reconsideration of the issues so mentioned.

18. It will be open to the Petitioners to apply to the State Government for temporary alternate transit accommodation till redevelopment of the building in question which shall be considered sympathetically. It will also be open to the developer, if so appointed, to provide the temporary alternate accommodation till the redevelopment of the new building, if any.

            

IN THE HIGH COURT OF BOMBAY

Writ Petition (Lodging) No. 2371 of 2014

Decided On: 08.10.2014

Zubair Malik Vs. Municipal Corporation of Greater Mumbai

Hon'ble Judges/Coram:

Anoop V. Mohta and A.S. Gadkari, JJ.

Citation: 2015 (1) ALL MR 543

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Whether compensation in lieu of alternate accommodation can be enhanced if redevelopment is not completed within fixed period?

Further, the alleged agreements contemplated the construction being completed and the petitioners members being put in possession of their respective premises in the newly constructed building within 24 months i.e. latest by the year 2010. It is inconceivable that the parties had agreed to accept the amounts allegedly mentioned therein in perpetuity. A view to this effect would entitle respondent No. 4 to delay the construction indefinitely and during this period, pay the petitioners members the amounts allegedly agreed upon in the year 2008. This would be highly inequitable and unfair to the petitioners members who have already suffered substantially by having been kept out of their premises for about five years. If that were the case, we would not have been inclined to exercise our powers in favour of granting respondent No. 4 further time to complete the construction of the building.

17. This brings us to the question of the quantum of increase in the monthly compensation to be granted to the petitioners members.

18. Mr. Shaikh, the learned counsel appearing on behalf of the petitioners relied upon the agreements entered into between respondent No. 4 and certain other tenants. Mr. Narula stated that those agreements were entered into under compulsion as those tenants had filed proceedings and were refusing to vacate. As Mr. Shaikh rightly pointed out the petitioners members cannot be penalized for having cooperated with respondent No. 4 by vacating the premises without adopting legal proceedings and having had to suffer on account of this inordinate delay. The agreements entered into between respondent No. 4 and the other tenants would be an indication of the fair amount to be paid towards compensation for the temporary accommodation.

19. We will, for the purpose of this writ petition, however, restrict the period for which this additional amount ought to be paid. We will presume that the agreements were entered into between the petitioners members and respondent No. 4 around July, 2008. The lump sum consideration of Rs. 1,80,000/- was paid from July, 2008 to July, 2010. Under the agreements, the tenants were to be put in possession of their premises within 24 months. 24 months from July, 2008, takes us to July, 2010. The agreements provide for enhanced compensation for any delay beyond 24 months. We will presume in favour of the respondent No. 4 that a further extension of 6 months would be reasonable. This would, therefore, take us to the end of the year 2010. In the facts and circumstances of the case, the enhanced rate ought to apply from January, 2011.

20. Mr. Narula contended that an enhancement in the amount of compensation for the extended period would amount to the Court varying an agreement between the parties. The contention is not well founded. We have not varied the terms of the alleged agreement. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 974 of 2012

Decided On: 26.02.2013

 Kagalwala Building Resident Welfare Association Vs.  Maharashtra Housing and Area Development Authority and Others

Hon'ble Judges/Coram:

S.J. Vazifdar and Mridula Bhatkar, JJ.

Citation: 2014(3) ALLMR 615

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When non statutory provisions can be treated as mandatory?

In the context of facts of the present case it
is sufficient to observe that non statutory provisions can hardly be
treated as mandatory unless their non observance is shown to have
caused legal injury by affecting some valuable rights of the writ
petitioners. As discussed earlier no such case could be made out by
the appellants so as to require interference on account of alleged
shortcomings in preparation or verification of Annexure II.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9363 OF 2011

Balasaheb Arjun Torbole  Vs The Administrator & Divisional Commissioner


SHIVA KIRTI SINGH, J.
Citation; (2015)6SCC534, 

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Whether third party having agreement with developer can claim specific performance of contract from society?

The clauses quoted above, read together and in their proper perspective to
be gathered from the whole agreement, clearly envisage the development and
sale of the free sale component of the project by Vaidehi on their own account
and as an independent contracting party, and not as agents of the Society. The
contract between Vaidehi and the Society is on a principal to principal basis; it
neither constitutes a partnership nor a joint venture or agency between the two.
The third party purchasers with whom Vaidehi might enter into agreements for
sale would have no privity of contract with the Society and the Society would in
no way be responsible for any claim made by such purchasers against Vaidehi
under their respective agreements for sale.
16.6 There being no privity of contract between the Society and the third party
purchasers claiming under Vaidehi, the third party purchasers cannot claim
specific performance of their respective agreements for sale except through
Vaidehi. They stand or fall by Vaidehi. If the rights of Vaidehi are brought to an
end upon a lawful termination of the Society Development Agreement, the third
party purchasers cannot lay any independent claim against the Society or anyone
claiming through the Society. The agreements with third party purchasers are
premised upon a valid, subsisting and enforceable agreement between their
vendors, namely, Vaidehi and the owners, namely, the Society and in fact refer to
the Society Development Agreement in this behalf. Admittedly, therefore, the third
party purchasers had, or at any rate, ought to have, notice of the Society
Development Agreement and its terms and conditions, and Vaidehi's obligations
to perform the same. If Vaidehi fails to perform these obligations, the purchasers
cannot but suffer the consequences. In other words, the purchaser's rights are
subject to Vaidehi's rights and not higher than those. Therefore, from a
contractual standpoint, the third party purchasers have no case against the

Society or Rustomjee, who claim through the Society.

  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 961 OF 2013
IN
SUIT NO. 262 OF 2012

Vaidehi Akash Housing Pvt.Ltd. Vs. New D.N. Nagar Co-op.Housing Society Union Ltd. & Ors.
                                                                                                                           
 CORAM : S.C. GUPTE, J.
 PRONOUNCED ON : 01 DECEMBER 2014
Citation: AIR 2015(NOC)722 Bom

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How consent decree for allotment of alternative accommodation in redeveloped premises is executable?

The question that remains is how can the allotment which was agreed by defendant No.16 to be made be enforced ? The property is not in existence. It is not constructed. It cannot be accepted or concluded that defendant No.16 who is a businessman and who has sought to develop the property would purposely not develop the property because he would want to escape from his liability to allot five flats in the developed property. Hence so soon as the defendant would construct the first five premises (four of which are sought to be executed and enforced aggregating to 4034 sq. ft. of carpet area) the plaintiff Nos. 3, 4 and defendant Nos. 17 and 18 and also Kapurchand H. Jogani & HUF would be entitled to have them allotted to them. Consequently, as justifiably argued by Mr. Madon, the consent terms would become executable when the construction is put up upon redevelopment of the suit property.

26. Once the expression "agreed to allot" is read as an "obligation to allot" the obligation would become executable and enforceable, but only when the premises to be allotted has itself come into existence.

27. It is trite that once an execution application is filed and an attachment is levied it would remain in force until the execution proceeds to the next stage of sale of the property. A decree for specific performance and injunction which is executable by attachment under Order 21 Rule 32 may not only end in sale of the property, but may end in the transfer of the property in favour of the plaintiff or may be enforceable as per the facts of each case. Consequently there would be a legal dilemma of the status of the property; the attachment would continue until the premises are allotted. The premises would be allotted only after they are constructed. The construction cannot be put up if the property is under attachment. Consequently the attachment would lead to nothing. The attachment cannot remain in force endlessly.

The attachment is only an aid to the ultimate execution, be it by sale or by execution of a document or otherwise. The attachment must enure for the benefit of the decree holder, but is not expected to punish the judgment debtor. It is not required to debilitate the business of the judgment debtor; in  fact that would be counterproductive even for the decree holder. Consequently as per the order of the Division Bench of this Court the issue whether the decree is executable or not is to be decided taking into account the practical realities.

28. The decree in terms of the consent terms dated 2 nd December, 2003 under the order of this Court dated 12 th January, 2004 is executable. It can and shall be executed only upon the redevelopment of the suit property by defendant No.16 and by construction of the premises in the redeveloped building. It shall be executed by allotment of the premises constructed to the extent of 1267 sq. ft carpet area in clauses 4(a), 4(b) and 500 sq. ft. carpet area, 4 (d) and 4(e) of the consent terms and further 1267 sq. ft carpet area under clause 4(c ) of the consent terms to the above HUF totalling to 4034 sq. ft. carpet area. Needless to mention that if defendant No.16 constructs premises of a different area and not of area of 1267 sq.ft or 500 sq.ft also plaintiff Nos. 3 and 4 and defendant Nos. 17 and 18 shall be entitled to whatever premises that is constructed, but to the extent of 3534 sq. ft.

carpet area being 1267sq. ft and 500 sq. ft as per clauses 4(a), 4(b), 4(d) and 4(e) of the consent terms and, of course the above HUF would be entitled to 1267 sq. ft. carpet area thus constructed.

Bombay High Court

M/S. Mahendra Builders Pvt. Ltd. & ... vs Smt. Padmabai W/O Ranchhodda V. ... on 27 February, 2015

Bench: R.S. Dalvi

Citation: AIR 2015(NOC)773 BOM

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Distinction between reconstruction and redevelopment

The plans under Regulation 67 cannot be approved except for repairs
"reconstruction" implies re-erecting the structure exactly as it was,
without any change, the term "redevelopment" involves an erection of
a new structure with a completely new plan, dimensions etc.

WRIT PETITION NO. 1469 OF 2009
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

Official Trustee, State of Maharashtra, Vs  Maharashtra Housing & Area Development Authority.

CORAM : S.J. VAZIFDAR, &
K.R. SHRIRAM, JJ.

THURSDAY, 06TH MARCH, 2014
Citation;2014(5) ALLMR 145,

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When development agreement is specifically enforceable?

 From the aforesaid terms of the said Agreement and power given by the Vendors to the Developers, I am prima facie of the view that though the said Agreement is termed as a Development Agreement, it is an agreement whereunder interest is created in favour of the Developers in respect of the suit property which includes the structures thereon. As can be seen from the above, all the rights to develop the property have been given by the Vendors to the Developers. The Vendors have already received the monetary consideration as set out in the said Agreement from the Developers. Except for the premises agreed to be given to the Vendors by the Developers in lieu of the premises used and occupied by them in the said building, the Vendors have given all the rights to the Developers to deal with the tenants in the manner they desire and after providing them with alternate accommodation in the newly constructed building or elsewhere or giving them monetary consideration in lieu of their tenements, the Developer is given full and complete right to sell the flats/units/shops etc. on ownership basis without any interference from the Vendors. The right to decide the elevation of the building, the colour scheme, etc. is also given to the Developers by the Vendors. The Vendors have also agreed that they shall execute the Conveyance Deed/Deed of Transfer in respect of the said property (i.e. the plot of land with buildings thereon) to and in favour of the proposed Society/Condominium of holders of various units/premises. The Vendors have in the said Agreement itself provided that they will be simultaneously executing a POA, inter alia, giving the right to the Developer to construct a new building, accommodate the Vendors and the tenants as agreed and most important to sign and execute the transfer deed/conveyance/assignment to and in favour of the Society/Condominium as well as effect its registration. In the circumstances I am prima facie satisfied that the said Development Agreement is capable of being specifically enforced. I am fortified in my view by the decision of the Hon'ble Division Bench of this Court in (Chheda Housing Development Corporation Vs. Bibijan Shaikh Farid and others) MANU/MH/0070/2007 : 2007 (2) Bom. C.R. 587 (O.S.): 2007(3) Mh.L.J. 402.
                                         

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
IN
NOTICE OF MOTION NO. 2055  OF 2012
SUIT NO. 1963 OF 2012

Shantilal J. Shah Vs Jitendra Sanghavi and others
   
                                 

CORAM :  S. J. KATHAWALLA, J.
DATE:           19   NOVEMBER, 2012
   
Citation: 2013(3)BomCR856,2013(7) ALLMR 112

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