JAYANTILAL INVESTMENTS versus MADHUVIHAR CO-OPERATIVE HOUSING SOCIETY AND ORS.

Citation: [2007] 1 S.C.R. 677 · Decided: 10-01-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

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JAY ANTILAL INVESTMENTS 
v. 
MADHUVIHAR CO-OPERATIVE HOUSING SOCIETY AND ORS. 
JANUARY 10,2007 
[DR. ARIJIT PASA Y AT AND S.H. KAPADIA, JJ.] 
Maharashtra Ownership Flats (Regulation of the Promotion 
of Construction, Sale, Management and Transfer) Act, 1963 with 
Amending Act 36186; ss. 3, 4, 7(1), 7(A), JO and 1 J/Maharashtra Ownership 
A 
B 
Flats (Regulation of the Promotion of Construction) Rules, 1964; Clauses 
C 
3 and 4: 
Rights and obligation of a promoter-Sale of flats-Agreement between 
promoter and buyers of flats-Construction of additional structure-
Consent of flat owners-Requirement of-Held: Amendment in Section 7 
made ands. 7-A introduced by amending the Act to make position explicit 
which according to Legislature existed implicitly before amendment-
Obtaining of prior consent by flat owners not required for constructing any 
additional structure-However, approval of the plan by competent authority 
necessary-Jn terms of clauses 3 and 4 of Rules, it is statutory and 
mandatory on the part of promoter to give details of land amenities, 
facilities and also to make full and true disclosure of development 
potentiality of the plot-High Court has failed to examine the question as 
to whether the promoter had undertaken the project in question for 
construction of additional building or for construction of one building 
with 7 wings-Answer to the question would decide about applicability of 
amended provisions of the Act, as amended and also as to whether time 
to execute the conveyance arrived at or not-Hence, matter remitted to 
High Court for reconsideration-Urban Land Ceiling Act, 1976-s. 2(1). 
Respondent no.1, a Co-operative Society and its members instituted a 
suit against the appellant-promoter for conveyance, injunction restraining 
the promoter from putting up further constructions and questioning the 
validity of the sanction given by the competent authority to the amended plan 
under which the competent authority sanctioned additional 2 wings applying 
the newly available norms. Trial Court partly decreed the suit, permitting 
the appellant-promoter to complete construction as per the amended plan. 
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678 
SUPREME COURT REPORTS 
[2007] 1 S.C.R 
The trial court gave a period of three years to him for executing conveyance 
in favour of the Co-operative Society under the provisions of Maharashtra 
Ownership Flats (Regulation of the Promotion of Construction, Sale, 
Management and Transfer) Act, 1963 (MOFA). Aggrieved, the Co-operative 
Society preferred an appeal before the High Court. A cross appeal was 
preferred by the appellant-promoter. High Court allowed the appeal filed 
by the Co-operative Society and dismissed the appeal filed by the appellant 
directing him to convey right, title and interest and execute all relevant 
documents in respect ofMadhu Vihar Scheme in favour of the Co-operative 
Society and appellant was restrained permanently from making any 
construction over the suit plot situated at Kandivali (West), Mumbai inter 
alia holding that under section 7 of MOFA the appellant was prohibited 
from putting up additional constructions after the plan stood disclosed to 
the flat takers; that the promoter was not entitled to make any alteration 
in the structure without prior consent of the flat takers; that the promoter 
could not make any additions in the structure of the building without the 
prior consent of the society and that under Section 7 A of the amended Act, 
the prohibition was not to apply in respect of the construction of any other 
additional building or structure constructed or to be constructed under a 
scheme or a project of development in the lay out plan; and that the 
appellant-promoter was not entitled to derive any benefit from Section 7A 
ofMOFA and, he was not entitled to construct additional building in the 
suit plot. Hence the present appeal. 
Appellant contended that Section 7 ofMOFA enjoined the promoter, 
inter alia, not to construct any additional structure without the consent of 
the flat takers; that the State Legislature imposed such a restriction on the 
promoter contrary to the object of the Act and, consequently, the legislature 
stepped in to change it by· enacting the Amending Act No. 36/86 and 
making it effective retrospectively; that the Amending Act deleted the 
restriction and left the promoter free to construct any additional structure 
without oi>taining the consent of the 

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