Raghavendra Anantacharya Jahagirdar JUDGMENT
Raghavendra Anantacharya Jahagirdar, J.
1. The two appeals and the petition raise an important question of law relating to the jurisdiction of the authority constituted under section 7(2) of the Maharashtra Ownership Flats (Regulation of the Promotion of the Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to for brevity's sake as the "Ownership Flats Act"). Though the question which arises in all these three matters is common, for the sake of convenience I proceed to narrate the facts involved in Appeal No. 450 of 1985 from order. I will refer to the arguments advanced in support of that appeal by Mr. J.I. Mehta appearing for the appellants and also refer to the arguments urged on behalf of the appellants in the other appeal and on behalf of the petitioner in the Civil Revision Application. All the arguments on behalf of the persons who are challenging the view taken by the City Civil Court at Bombay are being dealt with and disposed of without some times specifically referring to the particular advocate who has made those arguments. Similarly the arguments on behalf of the respondents in all these matters are dealt with.
2. Now to the facts in Appeal No. 450 of 1985 from Order. The appellants (hereinafter referred to as the 'plaintiffs') filed a suit, being S.C. Suit No. 3226 of 1985, in the City Civil Court at Bombay for an injunction restraining the respondents (hereinafter referred to as the 'defendants'), which is a Private Limited Company, from carrying on certain construction which, according to them, are in contravention of the agreements entered into by the plaintiff with the defendant. Plaintiff No. 1 itself is a Co-operative Housing Society having been so registered some time in the year 1985. Plaintiffs Nos. 2, 3, and 4 are purchasers of flats in the buildings which are to be owned by the first plaintiffs. The building have been constructed by the defendant which, as mentioned above, is limited company and which acted as the promoter in respect of these buildings. Some time in the year 1975 the plans for the construction of buildings on the land were submitted by the defendants and sanctioned by the Bombay Municipal Corporation. It is the contention of the plaintiff that 15% of the total area on which some building were to be constructed was reserved, according to the plans sanctioned by the Bombay Municipal Corporation, for recreation purposes. This area comes to about 3752 square metres. In the plans on which reliance has been placed by the plaintiffs, the areas which were to be reserved for recreation purpose have been shown by the letters G-1, G-2 and G-3. The buildings themselves were completed and the plaintiff have contended with sufficient success that plaintiff Nos. 2, 3, and 4 and several other purchasers of the flat have been put in possession of their respective flats. There is for example a letter dated 11th May, 1983 written by the Municipal Corporation to Mr. Phadke, the Chief promoter, in which details of the occupation certificates given have been mentioned in respect of the several buildings. The rest of the property, namely, the open spaces have not been naturally given in possession of the plaintiffs. This is partly for the reason that the co-operative society to which the conveyance had to be made in accordance with section 10 of the Ownership Flats Act had not yet been formed. It has been contended on behalf of the defendants before me, and there is considerable substance in this contention, that the entire property cannot be aid to have been given in possession of any of the plaintiffs.
3. Subsequently, namely, on 15th February, 1984 the promoter surrendered to the Municipal Corporation an area of 2200 square metres of the property which would otherwise have been conveyed to the co-operativ........