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ishwar Chinga Shetty and anr. Vs. Jivanji Bhulabhai Patel Since Deceased by His Heirs and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberAppeal No. 159 of 1980 from Order and Civil Revision Applications No. 628 of 1980
Judge
Reported in1987(2)BomCR371
ActsMaharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Sections 7, 7(1) and 7(2); Code of Civil Procedure (CPC) , 1908 - Sections 9
Appellantishwar Chinga Shetty and anr.
RespondentJivanji Bhulabhai Patel Since Deceased by His Heirs and ors.
Appellant AdvocateR.T. Walawalker, Adv. in A.O. 159/80 and ;P.S. Patankar, Adv. in C.R.A. 628/80
Respondent AdvocateA.G. Parikh, Adv. for respondent Nos. 1-A to 1-C, 1-E and 1-G and respondent Nos. 2 and 3 in A.O. 159/80, ;S.R. Kolambekar, ;M.V. Shetty, ;N.V. Kamat and ;P.B. Karhadkar, Advs. for respondent No. 4 in
Excerpt:
.....may have to be satisfied with compensation alone. , and would, however, like to clarify that the housing commissioner has exclusive jurisdiction to decide all disputes arising under section 7 of the act, but only such disputes which are to be referred to him under the circumstances and within the limitation as prescribed under section 7(2). 28. from the observations of the learned referring judge as extracted above the expression 'unauthorised change in the construction 'occurring in section 7(2) is referable only to construction handed over and occupied by complaining party under the agreement and at best regarding common amenities such as staircase or terrace. we would like to point out that the jurisdiction of the housing commissioner as envisaged under section 7 is a limited one to..........in these matters is almost ousted inasmuch as naik, j., held that it is the jurisdiction of the housing commissioner which pervades and takes under its wide umbrella cases not only of changes in the construction of the tenements occupied by the purchasers, but cases of additional structures or enclosures to open area or of structures which were to be open on all sides. the learned judge (desai, j.), therefore, made a reference to a division bench with these observations :---''i would be inclined, if the matter was res integra, to regard the expression ''unauthorised change in construction'' as referable only to the construction handed over to and occupied by the complaining party (under its agreement with the builders) or at the highest regarding the common amenities such as stair.....
Judgment:

M.R. Waikar, J.

1. While hearing Appeal from Order No. 159 of 1980 and Civil Revision Application No. 628 of 1980, the learned Single Judge (S.K. Desai, J.) found that in these two matters, so also in several others pending in the City Civil Court, questions often arise about the scope of section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter called ''the Act''). The learned Single Judge found that in view of one decision of the learned Single Judge of this Court (Nasik, J.) in Appeal from Order No. 299/1965 Shri Kantilal v. Ganesh Sadashiv, decided on 24-10-1966, the jurisdiction of a Civil Court in these matters is almost ousted inasmuch as Naik, J., held that it is the jurisdiction of the Housing Commissioner which pervades and takes under its wide umbrella cases not only of changes in the construction of the tenements occupied by the purchasers, but cases of additional structures or enclosures to open area or of structures which were to be open on all sides. The learned Judge (Desai, J.), therefore, made a reference to a Division Bench with these observations :---

''I would be inclined, if the matter was res integra, to regard the expression ''unauthorised change in construction'' as referable only to the construction handed over to and occupied by the complaining party (under its agreement with the builders) or at the highest regarding the common amenities such as stair case or terrace. It is only the disputes regarding defects in the building or material or unauthorised changes in the tenement or in the common amenities in the building which, according to me, are referable to the Housing Commissioner. The scheme of section 7 would appear to be that such defects and changes are to be brought to the notice of the Promoter and a time limit is prescribed during which the attention of the Promoter is to be drawn to such defects and he must then rectify or if rectification is not feasible, compensate for the defect or change. If he disputes the claim of the occupant or denies his liability, then the question of reference to the Housing Commissioner arises. The Housing Commissioner cannot prima facie, grant relief either by parvenus injunction or subsequently by mandatory injunction. He can only determine the compensation which is payable by the Promoter to the other party. If that be the restricted power of the Housing Commissioner, then the scope of the matters referable to him would be required to be read in a restricted sense rather than in the wider sense which found favour with Naik, J. With respect, there is clear logic in this approach by only referring certain disputes to him and excluding other types of disputes from his consideration and retaining the full control and jurisdiction of the Civil Courts over these disputes. The latter types of disputes which are excluded from the purview of the Housing Commissioner would normally require grant of relief of the nature which the Housing Commissioner by his very nature of office is unable to grant. If that be so, then to hold that such disputes also are referable to the Housing Commissioner and within his exclusive control and jurisdiction would be to make a mockery of the various provisions contained in and right conferred on the purchasers by the Ownership Flats Act.''

2. The learned referring Judge also referred to another decision of the learned Single Judge (Apte, J.) in Civil Revision Application No. 185 of 1976, decided on 29-6-1976. An interim injunction was granted, but it was subsequently vacated and it was on the footing that in their agreement with the builders the plaintiffs had agreed to allow and accept any future constructions that might be constructed by the builders. Apte, J., however, held that a blanket consent in the initial agreement ran counter to the provisions of section 7 and was, therefore, of no avail.

3. The learned referring Judge found that as there was no conflict in the two decisions of Naik and Apte, JJ., on the point of consent of the complaining flat owner, it would not be necessary to refer that question to the Division Bench.

4. Shri Walavalkar for the appellants submitted that on 4-10-1973, the plan of the proposed building was sanctioned by defendant No. 4 i.e, the Municipal Corporation of Greater Bombay, on 26-4-1978, the plaintiff was placed in possession of his flat, that on 14-7-1978 an agreement between the promoters and the flat owners took place and it was on 25-5-1979 that defendant No. 4, the Municipal Corporation in flagrant breach of law sanctioned a plan, permitting the promoters, defendants Nos. 1 to 4, to cover up the stilted portion, which, in fact, was meant for parking of cars, to be converted into tenements for providing space for the Medical Practitioners and for construction of two more flats. He submits that the revised plan as approved and sanctioned by the Municipal Corporation was in breach of the statutory provisions and the matter in controversy as contained in the present lis could never be settled or determined by the Housing Commissioner or a Superintending Engineer as envisaged under the provisions of section 7 of the Act.

5. We find that the learned trial Judge found the suit as untenable also on the ground that the consent contemplated by Clause 17 of the agreement filed with the phraseology ''previous consent'' contemplated by section 7 of the Act. The plaintiffs claimed a declaration that defendant No. 4 had no right to sanction any plan to cover the stilted portion of the ground floor and a further declaration that defendants Nos. 1 to 3 have no right to cover the stilted portion and an injunction restraining them from inducting any persons thereto or to change the original plan. The Notice of Motion was dismissed, holding that a Housing Commissioner is the proper authority to decide the dispute in question and that the proposed construction was with the previous consent of the first flat owner as Clause 17 of the agreement.

6. As under this reference, we are called upon to determine the true scope of section 7 of the Act, it is not for us but for the learned Single Judge before whom the matter has to go back to decide whether the suit as framed and the reliefs claimed against defendants Nos. 1 to 4 is or is not tenable and whether the provisions of section 7 of the Act are at all attached to the facts of the present case.

7. As we are called upon to determine the true scope and width of the provision of section 7, it would be desirable to reproduce the said section:

'7. (1) After, the plans and specifications of the building, as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make---

(i) any alterations in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person; or

(ii) make any other alterations in the structure of the building, or construct any additional structures, without previous consent of all the persons who have agreed to take flats.

(2) Subject to sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any defect in the building or material used, or if any unauthorised change in the constructions is brought to the notice of the promoter within a period of one year from the date of handing over possession, it shall wherever possible be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defect or change. Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction, or as to whether it is reasonably possible for the promoter to rectify any such defect or change or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not rectified by the promoter, the matter shall, on payment of such fee as may be prescribed , be referred for decisions to the Housing Commissioner appointed under the Bombay Housing Board Act, 1948 if the building is situated in the Bombay or Hyderabad area and to the Housing Commissioner appointed under the Madhya Pradesh Housing Board Act, 1950 if the building is situated in the Vidarabha region of the State, or to any officer not lower in rank than a Superintending Engineer as the State Government may by general or special order specify in this behalf, within a period of two years from the date of handing over possession. The Housing Commissioner or such officer shall after inquiry record his decision, which shall be final.'

8. Sub-clause (i) of section 7(1) enjoins that the promoter shall not make any alterations in the structures in respect of the flat or flats which are agreed to be taken without the previous consent of that person. i.e. the owner of the flat or flats.

9. Sub-clause (ii) of section 7(1) restrains the promoter from making any other alterations in the structure of the building or construction of any additional structures without the previous consent of all the persons who have agreed to take the flats.

10. Thus, sub-section (1) of section 7 postulates the preservation of the right or interest of any flat owner in the flat or flats he has agreed to take and also the preservation of the collective interest of the flat owners in construction and structure of the building. Needless to say that the promoter can do so with the consent or approval of the concerned persons.

11. Sub-section (2) of section 7 of the Act, in the first place, says that the proposed building shall be constructed and completed in accordance with the sanctioned plans and specifications. If within one year of the date of handing over possession it is brought to the notice of the promoter that (1) there is defect in the building, (2) defect in the material used, (3) there is introduced any unauthorised change in the construction, the promoter has to rectify it wherever possible without changing anything from the flat owners and if rectification is not practicable, they are entitled to reasonable compensation for such defect or change. Now, determination of the question of any alleged defect in the building or the quality of the material used or feasibility of rectifying the defect or proper assessment of the amount of reasonable compensation is found to be a controversial issue.

12. Disputes are also likely to arise, if the promoter makes alterations in the structures in respect of a flat or flats or the structure of the building or makes any additional structure without the previous consent of the flat owners, cases covered by sub-clauses (i) and (ii) of section 7(1) of the Act. All such disputes relatable to these sub-clause, in our view, are also required to be referred and resolved by the Housing Commissioner. We see no merit in the submission of Shri Walavalkar that the jurisdiction of the Housing Commissioner does not come into play as regards cases relatable to sub-clauses (i) and (ii) of section 7(1) of the Act.

13. Thus, all such disputes as envisaged in section 7 are to be brought to the notice of the promoters within one year from the date of handing over possession and the promoter, in this turn, is required to rectify the defect without any further charge. If a dispute arises over any of these matters, then it is to be referred to the Housing Commissioner within a period of two years from the date of handing over possession. The Housing Commissioner has to record his decision after holding an inquiry and his decision becomes final. Thus, for settlement of disputes of such nature falling within the periphery of section 7 and arising within the limited period, the Housing Commissioner is made the sole arbiter, with the avowed object of providing a speedier and cheaper remedy to the purchasers of the flats. The section obviously can have no application to matters and disputes falling outside its scope.

14. In order to ameliorate the evils of sundry abuses, malpractices and solve the difficulties relating to the promotion of construction, the sale, management and transfer of flats taken on ownership basis, the said Act came to be enacted. The Legislature, it appears, thought it expedient and advisable to confer upon a body outside the normal hierarchy of courts for speedy disposal of such disputes at a lesser expense.

15. True it is that every presumption should be made in favour of the jurisdiction of a Civil Court which can be taken away wholly by express words or by necessary implication. Section 9 of the Code of Civil Procedure, which says that courts shall have jurisdiction to try all suits of a Civil nature also recognises the power of the Legislature to vest in another Tribunal exclusive powers over any given special matter and where exclusive jurisdiction is thus created, the Civil Court evidently cannot interfere. The jurisdiction of the Civil Court can be taken away by express words or by necessary implication. Where exclusion of Civil Court's jurisdiction is pleaded or raised, the matter has to be considered in the light of the words used in the statutory provision on which the exclusion rests. In case the decision of a Tribunal is made final and binding on the parties, the decision cannot be assailed in a Court of law unless, however, it is on certain well accepted principles relating to jurisdiction and on the principles of natural justice, viz. if the Tribunal abuses its powers or does not act under the Act but is violative of its provisions or where the special Tribunal arbitrarily refuses to exercise its jurisdiction or has exceeded its jurisdiction under the statutes, rules and regulations regulating its duties and procedure, the Civil Court's jurisdiction to adjudicate is not ousted.

16. It is again well-known the sometimes the Legislature entrusts a Tribunal with the jurisdiction including the jurisdiction to determine whether the preliminary state of facts on which the exercise of its jurisdiction depends exists. Sometimes the Legislature confers jurisdiction on such Tribunals to proceed in a case, where a certain state of facts exists or is shown to exist. In the present case, the jurisdiction of the Tribunal, viz., the Housing Commissioner, depends upon the existence of certain jurisdictional facts, viz., (1) alteration in respect of structure of the flat or building without the consent of the flat owners, (2) defect in the building, (3) use of defective material and (4) unauthorised change in the construction. The Housing Commissioner has, therefore, also the power to determine these facts giving him the jurisdiction.

17. It is true that there is no provision in the act expressly barring or ousting jurisdiction of a Civil Court. The question is whether it is barred by necessary implication vide section 9 of the Code. The exclusion, no doubt, must be explicitly or clearly implied. When a Special Tribunal or a body is created by or under the authority of an Act of this nature for the specific purpose of determining rights which are the creation of the Act, then the jurisdiction of the Tribunal or of that body is exclusive, unless otherwise provided and the Civil Court cannot take cognizance of such matters. Regard being had to the object of the enactment, the nature of the controversy or dispute involved between the flat owners and the promoters and the finality given, to such an adjudication, the Legislature clearly intended to provide a more speedier and a cheaper remedy and the jurisdiction of the Civil Court in such matter must be held as barred by necessary implication.

18. It is submitted by Shri Walavalkar that the Housing Commissioner has no power to pass any interlocutory order, that there is no provision either for enforcement of any orders passed by the Commissioner or to punish a party in branch. He also submitted that from the opening words of section 7(2) and the scheme of the whole section, it is only when the building is completely constructed in accordance with the plans and specifications, that the provisions of this section would come into play. The plaintiff in the instant case, he submits, has approached the Civil Court to prevent commencement of some illegal activity of the promoters and as such, a suit for declaration and perpetual injunction would certainly lie in a Civil Court and the provisions of section 7 can have no application to such a suit. It is difficult to accept a proposition that provisions of section 7 can be invoked by the aggrieved flat owner only after the entire building or construction is over and completed. What should really prevent a flat owner from approaching the Housing Commissioner if he finds defective or sub-standard material being used or building being constructed in breach of the plans and specifications, even when the construction work is in progress and much before it reaches completion? The Housing Commissioner certainly can entertain such dispute and order of rectification of the defect in the building or the material being used. He can stop further construction. He cannot just throw it away, directing the aggrieved party to approach him after the building is fully completed, and when probably rectification being impracticable or not feasible, the aggrieved party may have to be satisfied with compensation alone. We may repeat that the contention of Shri Walavalkar that the nature of the present suit as a whole claiming declaration and injunction against defendant No. 4 does not fall within the limited scope and compass of section 7 can be raised by him before the learned single Judge for consideration.

19. Reading closely the provisions of section 7 and bearing in mind the object of this legislation, the rights, and liabilities created under it, in our view, are new rights and liabilities and are not common law rights as is sought to be contended by Shri Walavalkar. The promoter is under an obligation to get plans and specifications approved and to disclose and furnish them to persons who agreed to take one or more flats. The manner of disclosure is also prescribed by the rules. This right of purchaser of a flat and the obligation of the promoter is certainly the creation of the statute. The promoter then has to construct as per the sanctioned plan and if he wants to make any change or alterations, he has to do so only with the previous consent of the flat owners. If he does so without their consent or uses defective material, he is under an obligation to rectify the defect without charging anything from the flat owners. In case the rectification is not practicable, he can be asked to pay compensation. All these are statutory rights and liabilities created by the statute. The Superintending Engineer is also a competent authority under this section because he, as an expert, can decide justify the nature of such a dispute.

20. Section 13 of the Act then says that a promoter who, without reasonable excuse, fails to comply with or contravenes any provisions of the Act or any rules can be punished with imprisonment for a term which may extend to one year and to pay a fine upto two thousand rupees. This provision again is made to serve as an efficacious, punitive punch for the promoters and builders not to disregard and flout the statutory provisions.

21. As observed in (Dhulabhai's case)2, : [1968]3SCR662 where the exclusion of the jurisdiction of the Civil Court is not express then examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive, In such a case, it is necessary to see if the statute creates a special right or liability and provides for the determination of the right or liability and whether all questions about the said right and liability shall be determined by the Tribunal so constituted and whether remedies normally associated with the actions in a Civil Court are prescribed by the said statute or not.

22. Dealing with the question of jurisdiction of a Civil Court in relation to an industrial dispute, the Supreme Court in the case of (Premier Automobiles)3, : (1975)IILLJ445SC referred to the said earlier decisions and laid down that if the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act. Similarly, in the instant case, if the dispute relating to the enforcement of a right and obligation created in section 7 of the Act arises, its adjudication must be by the authority constituted under the Act, viz, the Housing Commissioner.

23. It is true that there is no provision to be found in the Act about the enforcement or execution of the orders of the Housing Commissioner. It is, therefore, submitted that in the absence of any provision, the Housing Commissioner cannot pass any order whatsoever. We see no force in such a submission. An express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. The observations of the Supreme Court to be found in Income Tax Officer v. M.K. Mohammed Kunhi A.I.R. 1969 S C 430 are apposite:

'It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Sutherland Statutory Construction, Third Edition, Articles 540(1) and 520(2). The powers which have been conferred by section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition. Vol. 1 at page 88, it has been stated :

'It is the duty of the Judges to apply the laws not only to what appear to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.'

'Maxwell on interpretation of the Statutes, Eleventh Edition contains a statement at P. 350 that where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution.'

24. The Housing Commissioner can, therefore, order and direct stoppage of the further work, order rectifications or removal and award compensation. The orders or decision made by him can certainly constitute a cause of action for the aggrieved party to file suit enforcing these reliefs. So merely because there is no machinery provided for the enforcement of his orders, the Housing Commissioner does not rob himself of the jurisdiction to decide the matters and fix up the liability acting under section 7 of the Act.

25. A Civil Court, no doubt, can grant relief of declaration and injunction, including interim injunction, but for grant of such reliefs to the aggrieved flat owner, the Civil Court would be required to first decide disputed facts contemplated by section 7 of the Act, which are jurisdictional facts to be determined by the Housing Commissioner for exercising his jurisdiction. There would thus be two forums functioning in the same area resolving similar disputes.

26. It was argued before us that in case of disobedience of the orders of the Housing Commissioner, the provisions of the Contempt of Courts Act can be invoked and that the delinquent promoter can be prosecuted in a Criminal Court under section 13 of the Act. Now, authoritativeness being on of the tests of a Court as laid down by the Supreme Court in Brajnandan Sinha v. Jyoti Narayan, : 1956CriLJ156 , it is difficult to say if the provisions to the Contempt of Courts Act can be resorted to. Again in the absence of any words, viz., disobedience or non-compliances of the orders or directions issued by any authority occurring in section 13, akin to the words occurring in the Essential Commodities Act, it is not possible to say that the defaulting promoter can be successfully prosecuted in a Criminal Court.

27. With respect therefore, we agree with the view taken by Naik, J., and would, however, like to clarify that the Housing Commissioner has exclusive jurisdiction to decide all disputes arising under section 7 of the Act, but only such disputes which are to be referred to him under the circumstances and within the limitation as prescribed under section 7(2).

28. From the observations of the learned referring Judge as extracted above the expression ''unauthorised change in the construction ' occurring in section 7(2) is referable only to construction handed over and occupied by complaining party under the agreement and at best regarding common amenities such as staircase or terrace. It is also observed that since the Housing Commissioner cannot grant the relief of preventive or mandatory injunction, he can only determine compensation and as such, matters referable to him must be required to be read in a restricted sense rather than in the wider sense in which Naik, J., read it. Now, the argument advanced before Naik, J., was that a case of additional structure falls outside the purview of section 7(2). The same was turned down, holding that the phrase embraces the words 'alterations in the structures of the flats, alterations in the structure of the building ' and also additional structures'. We are in respectful agreement with the view expressed by Naik, J.

29. The expression used in sub-clause (i) of section 7(1) with reference to one flats or flat is 'alterations in the structures'.

30. The expression used in sub-clause (ii) of section 7(1) with reference to the building as approved by the local 'authority is any other alterations in the structure of the building, or construct any additional structures'.

31. Sub-section (2) of section 7, which opens by saying that the building shall be constructed and completed in accordance with the plans and specifications as aforesaid, refers to case of defect in the building or material used and the case of 'any unauthorised change in the constructions. The expression 'alterations' occurring in sub-clauses (i) and (ii) of section 7(1) and the expression 'change' occurring in sub-section (2) are synonymous and the word 'unauthorised', in our view is advisedly used, if read in the context of the opening words of the sub-sections emphasizing the obligation of the builder to construct as per plans and the fact that alterations in the structure of the flat or building as referred to in sub-section (1) of section 7 with the consent of the flat owners being permissive. Therefore, the expression 'unauthorised change in the construction ' occurring in section 7(2) is comprehensive and embraces the expression 'alterations in the structures of the flat' 'alterations in the structure of the building' and also the words 'construct any additional structure' as rightly observed by Naik, J. Whether a particular work is an additional structure or is an alteration or is an unauthorised change or alteration would depend upon the facts and circumstances of each case. We would like to point out that the jurisdiction of the Housing Commissioner as envisaged under section 7 is a limited one to operate during a certain period in respect of particular disputes as are referred to him. So, they are such disputes arising between the flat owners and the promoters which are to be resolved expeditiously.

32. The reference is answered accordingly and the matter shall go back to the Single Judge for decision.


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