Summary of apartment owners act judgments v1.7

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APARTMENT OWNERS ACT
HC & SC Judgments AOA with INDEX V1.7 ©2013 Sarvadaman Oberoi
Summary of Apartment Owners Act Judgments V1.7
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

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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

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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 Article 21
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

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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

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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

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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

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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

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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

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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

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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
FULL TEXT OF JUDGMENTS AT LINK BELOW:
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Summary of apartment owners act judgments v1.7

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