1. Heard learned counsel for the parties.
2. The applicant, a Co-operative Housing Society filed a private complaint in the Court of learned Judicial Magistrate First Class, Vashi, Navi Mumbai, being Regular Criminal Case No.535 of 2003, as against the respondent nos.1 and 2 (Original accused nos.3 and 4) and three others, alleging offences punishable under Sections 5, 7 and 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and under Sections 403, 409, 420 r/w 34 and/or 36 of the Indian Penal Code. After recording the verification, the learned Magistrate issued process as against the respondents, for the offences punishable under Sections 5, 7, 11 r/w 31 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and under Sections 403, 420 r/w 34 of the Indian Penal Code. Against the said order issuing process, the respondent nos.1 and 2 (original accused nos.3 and 4), preferred a Criminal Revision Application, being Criminal Revision Application No.01 of 2006, in the Sessions Court, Thane. The learned Judge, after hearing the parties was pleased to allow the said Criminal Revision Application, by observing that no prima-facie offence was made out as against the respondent nos.1 and 2 (original accused nos.3 and 4) and accordingly quashed and set aside the order issuing process dated 21st November, 2013, passed by the learned Magistrate, as against the respondent nos.1 and 2, in Regular Criminal Case No.535 of 2003. The applicant has impugned the said Judgment and Order dated 7th December, 2010, passed by the learned 1st Ad-hoc Additional Sessions Judge, Thane, in this application.
3. At the outset, it may be noted, that respondent nos.3 and 4 (original accused nos.1 and 2) had also challenged the order issuing process as against them in Revision, being Criminal Revision Application No.09 of 2006, in the Sessions Court, Thane and the learned Sessions Judge, Thane vide Judgment and Order dated 7th December, 2010, allowed the said Revision and quashed the order issuing process. Against the said Judgment and Order, the Applicant has preferred a separate application, being Criminal Application No.528 of 2013, in this Court and the same is also tagged alongwith the present application. The present application is being considered only qua Respondent Nos.1 and 2 (i.e original accused nos.3 and 4), although the applicant has also impleaded respondent nos.3 and 4 (original accused nos.1 and 2) in this application. Respondent nos.3 and 4 are formal parties in this application.
4. Respondent no.1 is a doctor and respondent 2 is the husband of the respondent no.1 (original accused nos.3 and 4) and respondent nos.3 and 4 (original accused nos.1 and 2) are the developers, being the Managing Director and Director, respectively of 'M/s.Om Maruti Developers Pvt. Ltd.'. The respondent nos.1 and 2 are stated to have purchased an office premises, situated on the first floor of the applicant-society, being 101 from M/s.Om Maruti Developers Pvt. Ltd. According to the applicant -original complainant a Commercial-cum-Residential Plot in Sector 8 at Airoli, New Bombay, was given on Lease by CIDCO to M/s.Om Maruti Developers Pvt. Ltd., vide letter dated 11th January, 1995. It was clearly stated in clause - (ii) of the assignment letter dated 11th January, 1995, that M/s.Om Maruti Developers Pvt. Ltd, shall construct the building for business, mercantile and residential use only. According to the applicant-original complainant, it was stated in clause-10 of the assignment of lease dated 11th January, 1995, given by CIDCO to M/s.Om Maruti Developers Pvt. Ltd, that M/s.Om Maruti Developers Pvt. Ltd was obliged to have the lease transferred in the name of the society/company and they would be permitted to do so, subject to them complying with the terms and conditions of the agreement. According to the applicant, respondent nos.3 and 4 of M/s.Om Maruti Developers Pvt. Ltd were granted permission/rights to develop the said land, subject to certain terms and conditions.
Mr.Chandnani, submitted that the respondent nos.3 and 4 constructed a building, consisting of 30 shops on the ground floor, 48 flats on the upper floors and two offices, being Office No.101 and 108 on the first floor of the building. Respondent nos.3 and 4 are stated to have entered into agreements with the prospective purchasers of the shops/offices/flats representing to them, that the ground floor shall consist of shops, first floor for offices for commercial use and that on the upper floors, flats would be constructed. Mr.Chandnani submitted that one such agreement was entered into between the respondent nos.1 and 2 (purchasers), with respondent nos.3 and 4 dated 17th July, 2002. According to the learned counsel for the applicant, by virtue of clause - 3, the respondent nos.1 and 2 had agreed to purchase and respondent nos.3 and 4 had agreed to sell the office premises, bearing No.101 on the first floor of the society. In clause 25 of the said agreement, it was stated that nothing would be done to the office premises, without the permission of the applicant - society and as per clause 27 no additions or alterations of whatsoever nature were to be made.
According to Mr.Chandnani, despite the said clauses, the respondent nos.1 and 2 with the active support and assistance of the Navi Mumbai Municipal Corporation i.e. respondent no.5, converted the office, bearing no.101 in the building of the applicant - society, into a maternity home and the Navi Mumbai Municipal Corporation accorded permission to the respondent nos.1 and 2, by its letter dated 10th October, 2002. The applicant has stated in the complaint that vide letter dated 8th January, 2003, the applicant had informed the Navi Mumbai Municipal Corporation, and raised an objection regarding converting of the office premises into a Maternity Home, however, despite the objections raised by the applicant to the intended conversion, the Navi Mumbai Municipal Corporation had taken no steps to revoke the permission so granted. The applicant through his Advocate had sent a legal notice dated 31st July, 2003, to the Navi Mumbai Municipal Corporation and the respondents herein, calling upon the Navi Mumbai Municipal Corporation to withdraw/revoke the permission. However, the said notice went unheeded. According to the applicant, as the respondent nos.1 and 2 had carried out certain alterations and additions and converted the office premises into a maternity home, which was not permissible as per the sanctioned plan, the respondents herein had committed the alleged offences punishable under Sections 5, 7 and 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.
It is the applicant's case, that as the office premises was converted into a Maternity Home, the same constitutes an offence under Section 7 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. It is also alleged that failure on the part of respondent nos.3 and 4, to convey the land within 4 months from the date of its registration, which was 13th November, 2001, in favour of the applicant, constitutes an offence under Section 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, and Rules made thereunder. According to the applicant, non-conveyance of the land in favour of the applicant - society constitutes, an offence under Section 7 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. It is also alleged in the complaint, that despite several letters sent to the respondent nos.3 and 4 to comply with the statutory obligations under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, the respondent nos.3 and 4 had failed to comply with the said obligations. According to the applicant, the defiant attitude of the respondent Nos.1 to 4 in converting the office into a maternity home, would constitute an offence of cheating punishable under Section 420 r/w 34 of the Indian Penal Code, inasmuch as, the members of the applicant - society were deceived fraudulently by the representation made by the respondent Nos.3 and 4, to the prospective purchasers (now members of the applicant - society) that the premises 101 would be used as an office.
According to the applicant, though respondent nos.5 was informed about the violation of the provisions of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, they failed to respond, which prima-facie shows that the respondents have acted in concert and as such aided and abetted each other in commission of an offence under Section 7 of the MOFA, and were thus liable under the said provisions with the aid of Section 34 of the Indian Penal Code. According to the applicant, respondent Nos.3 and 4 in addition to the commission of offences under the MOFA, had also committed offences punishable under Section 403, 409 r/w 34 of the Indian Penal Code, inasmuch as, the respondent Nos.3 and 4 had collected diverse sums from individual flat purchasers and had not rendered the accounts to the society, on formation of the society and as such respondent nos.3 and 4 had committed an offence punishable under Section 5 of the MOFA and under Sections 403, 409 r/w 34 of the Indian Penal Code.
5. Mr.Chandnani, learned counsel for the Applicant relied on the letter dated 11th January, 1995, by which the plot, being Plot in Sector 8 at Airoli, Navi Mumbai came to be assigned by CIDCO to M/s.Om Maruti Developers Pvt. Ltd. According to him, the said letter of assignment of lease, records that 'the building shall be constructed for business, mercantile and residential uses only' and according to clause - ii of the development conditions of the said letter, the building was to be constructed for business, mercantile and residential use only, which means shops, restaurants and banks on the ground floor and offices, consulting rooms, coaching classes and residences on the upper floors. According to him, under clause 10 of the said letter, the transfer or assignment of rights was to be done by the builder which was never done. He submitted that vide letter dated 7th March, 1995, the Navi Mumbai Municipal Corporation granted development permission to M/s.Om Developers Pvt. Limited, to construct commercial cum residential building on the above mentioned plot. According to the learned counsel for the applicant, the agreement which was executed on 17th July, 2002, between the respondent nos.1 and 2 and respondent nos.3 and 4, in particular clause -3 of the said agreement shows that the purchasers i.e. (respondent nos.1 and 2) had agreed to acquire the said office bearing no.101 on the first floor, as an office and not as a maternity home.
He also relied on clause -25 of the said agreement executed between the respondent nos.1 and 2 and respondent nos.3 and 4 i.e. the developers that the said office shall from the date of possession thereof, be maintained at their own cost and nothing shall be done to the said office, which is against the rules or bye-laws of the Municipality or any public authority duly constituted by law or any other authority. According to Mr.Chandnani, in clause 25 of the agreement, it is recorded that without prior permission of the builder or the Co-operative Society or Limited Company or such other Legal Body as the case may be, respondent nos.1 and 2 should not carry out structural/architectural alterations/ modifications or changes to the said office and if there was any breach of the Rules and Regulations, then the purchaser shall be liable and responsible for the same. Mr.Chandani, also relied on clause 27 of the said agreement, wherein it is stated that the purchasers i.e. respondent nos.1 and 2 shall not at any time demolish the said office or any part thereof agreed to be taken by them nor shall they at any time make or cause to be made any additions or alterations of whatsoever nature to the said office or any part thereof and that the purchaser shall not permit the closing of verandah or lounges or balconies or make any alterations in the elevation and outside colour scheme of the said office to be acquired by them.
6. According to Chandnani, on the same day i.e. on 17th July, 2002, when the agreement was entered into between the respondent nos.1 and 2 with the respondent Nos.3 and 4, that a 'no objection' came to be issued by the respondent Nos.3 and 4 in favour of the respondent nos.1 and 2 stating therein, that they could carry out necessary internal charges (non-structural) to suit the requirement of the said premises, without affecting the beams and columns and permitted the first floor to be used as commercial premises as per the assignment of lease between CIDCO and M/s.Om Maruti Developers Pvt. Ltd. He submitted that on 10th October, 2002, the Navi Mumbai Municipal Corporation also issued a 'no objection certificate' to the respondent nos.1 and 2, to use the first floor of the said building, as a Maternity Home. He therefore submitted that the respondents have acted in connivance with each other and as such have committed the alleged offences, for which process has been rightly issued by the learned Magistrate. According to Mr.Chandnani, the 'no objection certificate' for converting the commercial premises into a Maternity Home was given, when the society was formed and was already in existence and therefore offences under MOFA and IPC were clearly made out.
7. Mr.Mundargi, learned senior counsel appearing for the respondent nos.1 and 2 submitted that no interference is warranted in the Judgment and Order passed by the Revisional Court, quashing the order issuing process. He submitted that as no offence was made out as against the respondent nos.1 and 2, the Revisional Court rightly allowed the revision preferred by respondent nos.1 and 2. According to him, the respondent nos.1 and 2 were bonafide purchasers of the premises and therefore no offence can be said to have been committed by them, either under the MOFA or under the Indian Penal Code. He submitted that as far as change of user is concerned, the applicant has a remedy in law and can raise a grievance before the Navi Mumbai Municipal Corporation/ any appropriate forum, in that regard. He further submitted that a civil suit for temporary injunction was filed by the applicant - society and that the same came to be rejected. The said order rejecting the temporary injunction was challenged by way of an Appeal which was rejected vide order dated 22nd August, 2012. Thereafter, the said order was challenged in the High Court, which also came to be dismissed. He submitted that the civil proceedings and orders passed in the said proceedings, were deliberately suppressed by the applicant - society, when the criminal complaint was filed in the year 2005, though the same were well within the knowledge of the applicant - society. He submitted that change of user was carried out by the respondent nos.1 and 2 after obtaining necessary permission from the competent authority i.e the Navi Mumbai Municipal Corporation and therefore there was no substance in the allegations made by the applicant complainant.
8. Heard learned counsel for the parties at length. Perused the complaint, documents and the impugned order. It is made clear, that the present application is being considered only qua respondent nos.1 and 2, in so far as it challenges the order dated 7th December, 2010, passed by the learned 1st Ad-hoc Additional Sessions Judge, Thane, allowing the Revision Application preferred by the respondent nos.1 and 2 and consequently quashing the order issuing process against them. The respondent nos.1 and 2 had purchased the premises bearing no.101, situated on the first floor of the building, for a consideration from respondent nos.3 and 4 vide agreement dated 17th July, 2002. The said agreement was a registered agreement. It is thus evident, that the premises which was purchased by the respondent nos.1 and 2 was under an agreement, duly executed between respondent nos.1 and 2 and respondent nos.3 and 4. It appears that the respondent nos.3 and 4 had given their 'no objection' to the respondent nos.1 and 2, to use the premises/office as a Maternity Home. It also appears that the respondent nos.1 and 2 had applied to the Navi Mumbai Municipal Corporation, which also issued a 'no objection certificate' to the respondent nos.1 and 2, under Section 45(1)(3) of the Maharashtra Regional Town Planning Act, 1966, vide letter dated 10th October, 2002. It also appears from the record, that the applicant - society had filed a Regular Civil Suit No.24 of 2003 in the Court of Civil Judge, Junior Division, Thane, seeking perpetual injunction, restraining respondent nos.3 and 4 from selling the suit premises for any other purpose/use, other than for office purposes and for restraining the respondent nos.1 and 2 from running a maternity home and also for restraining the respondent no.5 - Navi Mumbai Municipal Corporation from allowing the applicant to use the suit premises as a Nursing Home.
The Civil Court rejected the application seeking temporary injunction on 24th April, 2003. The said order was confirmed by the Additional District Judge, Thane vide order dated 7th May, 2003 and on 8th September, 2003, the High Court dismissed the Writ petition filed by the applicant - society, observing that it was an interlocutory order and therefore no interference was warranted with the concurrent view take by the Courts below. It appears that after the aforesaid orders were passed in the civil proceedings, the applicant filed the aforesaid criminal case being RCC No.535 of 2003 before the learned Judicial Magistrate First Class, Vashi, Navi Mumbai, alleging offences punishable under Sections 5, 7 and 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and under Sections 403, 409, 420 r/w 34 of the Indian Penal Code. The question that arises for consideration is whether Sections 5, 7 and 11 of MOFA can be said to have committed by the respondent nos.1 and 2. Section 5 contemplates that the Promoter shall maintain a separate Account of the Sums taken as advance or deposit and to be Trustee therefore; and to disburse them for purposes for which it is given. Under Section 7 of the said Act, after the plans and specifications of the building as approved by the local authority are disclosed, the promoter shall not make any alterations or additions without consent of persons who have agreed to take the flats; and that the defects noticed within 3 (three years) are to be rectified by the promoter and under Section 11, the promoter shall take all necessary steps to complete his title and convey the same to a co-operative society or a company or to an association of flat owners his right, title and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and deliver all documents of title relating to the property which may be in his possession or power.
9. A perusal of section 5 of MOFA shows that it is the promoter who is required to maintain a separate account in any bank of the sums taken by him, from persons intending to take or who have taken flats, and shall hold and disburse the said moneys for the purposes for which they were given. The present respondent nos.1 and 2 cannot be said to be 'promoters' and therefore there is no question of section 5 applying to respondent nos.1 and 2 individually or with the aid of Section 34, as respondent nos.1 and 2 are admittedly flat purchasers.
10. The term 'promoter' has been defined under Section 2(c) of the said Act (amendment dated 25.2.2008). It means "[a person and includes a partnership firm or a body or association of persons, whether registered or not], who constructs or causes to be constructed a block or building of flats, [or apartments] for the purpose of selling some or all of them to other persons, or to a company, co-operative society or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both". As far as section 7 of MOFA is concerned, it provides for a remedy to the flat purchasers against the developer. It is pertinent to note, that the respondent nos.1 and 2 are the purchasers of the premises in question, from respondent nos.3 and 4, who are the developers and therefore there can be no application of section 7 to the respondent nos.1 and 2. As far as Section 11 is concerned, the same will also not apply to respondent nos.1 and 2, as they are not the promoters and hence there is no question of them conveying any title or executing any documents in favour of the applicant.
11. As far as the IPC related offences are concerned with which the respondent nos.1 and 2 have been charged i.e 403, 406 or 420 of the Indian Penal Code, with the aid of Section 34, by no stretch of imagination, these sections would apply to the respondent nos.1 and 2, considering the fact, that they themselves are purchasers.
12. The dispute is essentially between the applicant - society and the respondent nos.3 and 4, and the respondent nos.1 and 2 cannot be roped in along with respondent nos.3 and 4, only because they had purchased the premises from the respondent nos.3 and 4 and as respondent nos.3 and 4 had granted no objection to respondent nos.1 and 2 to use the office premises as a maternity home.
13. There is no infirmity in the order passed by the learned Additional Sessions Judge, by which the order of issue process came to be quashed and set aside, qua the respondent nos.1 and 2. No interference is therefore warranted in the said order.
14. The applicant is however at liberty to raise its grievance before the appropriate forum, with regard to change of user, as is permissible in law. It is made clear that the observations made herein are restricted to the complaint filed as against respondent nos.1 and 2, (original accused nos.3 and 4) alleging offences punishable under MOFA and under the IPC.
15. The Application is accordingly dismissed and disposed of on above terms.