Summary of apartment owners act judgments v1.6

1 APARTMENT OWNERS ACT

HC & SC Judgments AOA with INDEX V1.4 ©2013 Sarvadaman Oberoi

Summary of Apartment Owners Act Judgments V1.6

Ser HC/SC Title/Citation/Point Date Pg

1 Bombay Rajendralal Shadilal v State of Maharashtra AIR 1980 Bom

261: Builder member not a purchaser

29-Aug-79 1

2 Bombay Association of Commerce v Vishandas Samaldas (1981) 83

BOMLR 339: Mandate of Section 4 & 7 of MOFA 1963 is

absolute

8-Dec-80 24

3 Bombay Neena Sudarshan Wadia (Smt.) v Venus Enterprises 1984

(2) BomCR 505: a promoter is made a trustee, inter alia, of

the amounts received as advance or deposit from persons

intending to purchase or who have purchased flats,

promoter is enjoined upon to hold such moneys for the

purposes for which they were taken, promoter prohibited

from constructing any additional structures or altering the

structure of the building unless previous consent of all the

persons who have agreed to take the flats is taken

9-Feb-83

85

4 Bombay Kalpita Enclave Co-Operative v Kiran Builders Pvt. Ltd. 1987

(1) BomCR 355, (1986) 88 BOMLR 100, 1986 Mh.L.J. 110: A

blanket consent or authority obtained by the promoter at

the time of entering into the agreement for sale or at the

time of handing over possession is not the consent

contemplated, the law says that without the consent of all

flat purchasers no alteration in the structure of the building

can be made or no additional structure or any additional

structure not warranted by the agreements and the plans

and the specifications can be constructed, it is not open to

the promoters to turn round and say that they would take

the consent of only some of the persons and make some

alterations, What is permissible under the Bombay

Municipal Corporation Act does not necessarily become

16-Aug-85 133



permissible under the provisions of the Ownership Flats Act.

In such cases, the flat purchasers have remedy in the law

because a wrong have been committed and since this wrong

cannot be remedied under the provisions of section 7(2), the

only forum in which this can be agitated is the Civil Court.

5 Gujarat The Competent Officer Gujarat v .K.B. Parmar AIR 1993 Guj

5: GOFA 1973, Power of Board to evict

15-Apr-91 173

6 Bombay Khatri Builders vs Mohmed Farid Khan And Ors. 1992 (1)

BomCR 305, AIR 1975 SC 2238: promoter cannot under the

cloak of the blanket consent obtained under the proforma

agreement of sale carry out the work of additional structures

thus nullifying the provisions which are made essentially for

the protection of the purchasers of flats, contravention of

section 7(1) of the Ownership Flats Act gives a cause of

action because any construction carried on by the promoter

which is not in accordance with the plans and specifications

of the building on the basis of which the flat owners agreed

to purchase the flats will be an unauthorised construction A

negative obligation placed upon the promoter by section 7,

if broken, must necessarily give rise to a civil cause of action,

though it has not been a penal offence under the provisions

of this Act, attempt of the promoter to construct any

additional structure without the previous consent of all the

persons who have agreed to take the flats, it must follow

that the Civil Court alone has Jurisdiction

19-Sep 91 214



7 Delhi Sagar Apartments Flat Owners Association v Sequoia

Construction Pvt Ltd 51 (1993) DLT 308: by non execution of

the deeds of apartment, rights and interests of the

apartment owners/allotters are NOT obliterated, analogy of

a suit for specific performance of an agreement to sell a

property filed by the vendee is totally alien to the point

under consideration regarding applicability of the provisions

of a Statute

31-Mar-93 236

8 SC Dr G.N. Khajuria v Delhi Development Authority AIR 1996

SC 253: Punish officers responsible for continuing illegality

31-Aug-95 277

9 Andhra CSR Estates Flat Owners Welfare Association v Hyderabad

Urban Development Authority 1998 (6) ALD 547: Amend

declaration after consent of all apartment owners

2-Nov-98 285

10 Kerala Lissy Lyju v Tahsildar AIR 2001 Ker 82: Definition of

apartment

18-Aug-00 310

11 Gujarat Centre Point Welfare Association v Nita International

(2001) 4 GLR 2777: GOFA 1973, builder may not sell shops,

one sided contracts

8-Mar-01 333

12 Gujarat Narendra Shankarbhai Patel v State of Gujarat: Liability for

defective construction

30-Apr-01 466

13 SC Gayatri De v Mousumi Cooperative Housing Society (2004)

5 SCC 90: Writ maintainable against orders of Board

16-Feb-04 484

14 Andhra Atluri Purushotham v VUDA: limits placed on rights of

neighbours, Article 21

13-Apr-05 502

15 Andhra Dr V. Sundara Rao v Director Town & Country Planning

2005 (6) ALD 525: neighbour may question unauthorized

construction

30-Aug-05 577



16 Andhra Pallavi Enclave Flat Owners Association v State of A.P. 2006

(2) ALD 272: once the first flat is purchased by any person,

for the first time, such purchaser and the builder become

common owners. Even if such builder keeps for himself a flat

or two, his status would be that of a co-owner and he cannot

claim a priority right or pre-emption right.

24-Jan-06 593

17 Bombay Gladhurst Coop Housing Society v Dr (Mrs) V.B. Shah 2006

(4) BomCR 97: Bye-laws are binding

5-May-06 623

18 Bombay Chheda Housing Development v Bibijan Shaikh Farid 2007

(3) MhLj 402: Obligation to transfer land

15-Feb-07 677

19 Bombay Bjranglal Eriwal And Ors. vs Sagarmal Chunilal And Ors.

2008 (110) Bom LR 1252: There is a statutory embargo upon

the making of alterations either in an individual flat or in

respect of the structure of the building after the disclosure

of the plans and specifications of the building, the State

Government was conscious of the fact that on account of an

acute shortage of housing, there were "sundry abuses,

malpractices and difficulties relating to the promotion of the

construction of, and the sale and management and transfer

of flats taken on ownership basis." The legislature has found

that such malpractices not merely existed, but they were

increasing. It is in this background that the Court must adopt

a purposive interpretation of law and that interpretation

which would defeat the object of the legislature must be

eschewed, It is well settled that such a general consent will

be of no avail. Such a consent cannot be the basis to enable

the builder to go for the amendment of the plan already

sanctioned and available at the time of execution of the

purchase agreement without taking prior consent of the flat

27-Mar-08 702



purchasers, Plaintiffs have made out a prima facie case for

the grant of interim relief. Denial of interim relief would only

encourage a breach of the statutory obligations cast on the

promoter under the Act. The balance of convenience must

clearly lie in favour of the grant of injunction.

20 Bombay Nahalchand Laloochand Pvt Ltd v Panchali Coop Housing:

Parking as common area, Definition of amenity, no estoppel

against the statute as is well-known and, therefore, the trial

Court rightly held that the individual undertakings furnished

by the flat purchasers were contrary to the provisions of

MOFA and were illegal

25-Apr-08 720

21 Delhi D.C.M. Ltd v R.K. Towers India Pvt Ltd: No locus of builder

after sale of flats

22-Aug-08 754

22 Delhi Guru Ram Das Bhawan v Doon Apartments: upon formation

of AOA security deposit to be handed over, while disallowing

most of the reliefs claimed in the suit, I do the same with a

heavy heart being fully aware of the difficulties being faced

28-May-

09

773

23 Madras Cosmo Towers Owners Association v Chennai Metropolitan

Water Supply & Sewerage Board: AOA has no right to

disconnect water, electricity, may recover dues as per

statute, every owner is automatic member of AOA

18-Jun-09 790

24 P&H CWP No.960 of 2000 Manmohan Lowe v State of Haryana:

Apartment owners are entitled to undivided interest in

common areas and facilities under section 6 of the 1983 Act

and, thus, are vitally affected if common area in which

apartment owners are entitled to undivided interest is not

declared to be common area; Stand on behalf of the State is

that while there is no dispute about common areas covered

by Clauses (1) to (6) of Section 3(f), dispute arises with

09-Sep-09 808



regard to interpretation of Clause (7) and the disputed items

may or may not fall under the said clause. Since the

matter is pending before the competent authority, the

competent authority may be required to take a decision or

the Court may clarify the position; In the context of the

present complex, the licence was for residential purpose

and the definition of “apartment” referred to residential

areas; We are of the view that the declaration must

categorise the entire property into either apartments or

limited areas and facilities or common areas and facilities; As

regards judgment of the Hon’ble Supreme Court in DLF

Qutab Enclave Complex (supra), holding that community

buildings etc. covered by section 3(3)(a)(iv) could be

transferred by the colonizer and under the licence, the

obligation of the licensee was only to construct the said

buildings and not to hand it over to the Government, the

same will not apply for interpretation of provisions of

Sections 5, 6 and 11 read with Clauses (a), (f) and (l). The

said question was not before the Hon’ble Supreme Court;

It is not the intention of the legislature that the developer

assumes absolute power of declaring or not declaring areas,

normally in common use, to be common areas. Section

11, which deals with contents of declaration, cannot be read

as giving absolute power to the developer to exclude

common areas from the said concept; After elections take

place, there will be only one association; jurisdiction of the

civil court also exists; Elections may be conducted under

supervision of representative of competent authority or civil

court



25 Bombay Noopur Developers v Himanshu V. Ganatra Borivili West:

Delay not a ground to condone illegal construction,

additional FSI not to go to builder as a matter of course

14-Jan-10 841

26 P&H Celebrity Homes RWA v State of Haryana: FAR benefit on

account of delay in completion

8-Apr-10 859

27 Delhi O.S. Bajpai v The Administrator (Lt Gov): Common areas,

appointment of AOA registrar, time bound formation of

AOA, handing over of land by builder

28-May-

10

903

28 SC Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-Operative

Housing Society Ltd. (2010) 9 SCC 536: Definition of Flat -

Definition of Common Areas (MAOA) - argued by counsel for

promoter that it is for the promoter to prescribe and define

at the outset the `common areas' - if the answer to this

question is in negative, which it has to be, this argument

must fail, argued by learned counsel for the promoter that in

view of the provisions of MOFA, Section 6 of T.P. Act and

Article 300A of the Constitution, the right of the promoter to

transfer parking spaces is not at all restricted, We think this

argument does not bear detailed examination - if the

argument of learned senior counsel and counsel for

promoter is accepted, the mischief with which MOFA is

obviously intended to deal with would remain unabated and

flat purchasers would continue to be exploited indirectly by

the promoters - promoter has no right to sell any portion of

such building which is not `flat' and the entire land and

building has to be conveyed

31-Aug-10 929



29 Delhi The Nav Nirman Cooperative Group Housing Society Ltd. v

A.K. Murarka & Ors: - decision taken in GBM is binding,

enjoyment of parking space does not create any right in the

proportionate share in the land, members shall use allocated

parking space only for the purpose of parking their vehicles,

the allocation of parking space shall be only on license basis,

in Nahalchand Laloochand Pvt.Ltd v. Panchali Cooperative

Housing Society Ltd. decided on 31.08.2010 - held that the

stilt car parking space could not fall within the definition of a

flat and was part of common area and could not be sold

separately, held also that the promoter thus did not have a

right in the same and were this to be permitted, the very

purpose of enacting the aforesaid Act would be defeated

since the flat purchasers would continue to be exploited

indirectly by the promoters

1-Oct-10 968

30 Delhi Cinerama Pvt Ltd v NDMC: Assess each apartment as

separate unit for taxation

25-Jan-11 981

31 Delhi Nehru Place Hotels Ltd v Bhushan Ltd: no locus of builder to

continue maintenance services without giving accounts

9-Aug-11 999

32 Bombay Mr. Vijay Pandurang Vaidya & Anr. v Credence Property

Developers Pvt. Ltd.: Society - when is proper and necessary

party, reliance placed in para 8 of the Judgment in the case

of Nahalchand Laloochand Private Ltd. v Panchali Co-op

Housing Society Ltd (2010) 9 SCC 536 not correct, mandatory

on the part of the Buider/developer to provide space for

parking purpose, held that Buider/developer is illegally

trying to sell/dispose of car parking spaces, locus of

individual apartment owner in certain circumstances upheld

7-Mar-12 1025



33 Bombay Maharashtra Chamber of Housing v State of Maharashtra:

rights which are conferred upon flat purchasers transcend

those which are available under ordinary contractual

conditions - MOFA is not the only regulatory enactment

governing the promotion, sale and transfer of flats in the

State. The Maharashtra Apartment Ownership Act, 1970 was

enacted to provide for the "ownership of an individual

ownership apartment in a building and to make such

apartment heritable and transferable property."- A circular

cannot override a legislative provision or an exercise in the

nature of subordinate legislation - in the case of construction

contracts where the immovable property, land or as the case

may be, interest therein is to be conveyed and the property

involved in the execution of the construction contract is also

transferred, it is the latter component which is brought to

tax under Maharashtra Value Added Tax Act, 2002

10-Apr-12 1032

34 Gujarat Gujarat Vrajmoti Corporation vs Ambawadi Apartment

Owners Association: Builders interpretation of Section 53A

of the Transfer of Property Act qua common areas and

facilities in the cases falling under GOFA 1973 misconceived -

refer Preamble, Sections 17, 18(1)(f) & 21; that when the

unit holder/flat holders is allotted a flat, he will have a right

of enjoyment of common amenities and facilities like

compound, staircase and other facilities, which may be there

including the terrace in common

23-Apr-12

1090

35 Bombay Pradeep Shankar Walvekar v Anil Narsinha Annachhatre:

where the developer proposes to subject the property either

to the provisions of MOFA or the MAOA 1970 may be a

category of agreement - specifically enforceable

18-Jul-12 1111



36 Bombay Sultanabad CHS Ltd (Proposed) v State of Maharashtra:

prevent the sundry abuses and malpractices which had been

on increase, appointment of one or more Competent

Authorities for different local areas, building belongs to the

Society which is a body consisting of flat purchasers, but the

land beneath it does not belong to it or is not owned by it, If

the promoter submits property to the provisions of the

Maharashtra Apartment Ownership Act, 1970, it shall not be

lawful to form any co-operative society or company

31-Aug-12 1148

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Summary of apartment owners act judgments v1.6

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