Subhash Samvatsar, J.
1. This appeal is filed by the plaintiffs challenging order dated 16-10-98 passed by VIIIth Additional District Judge, Gwalior in Civil Suit No. 45-A/96, whereby the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of Code of Civil Procedure is rejected.
2. The brief facts of the case are that the plaintiffs have instituted a suit against the defendants for declaration and permanent injunction alleging that the land bearing Municipal No. 50/1/157 situated in Ward No. 50 near Idgah Kampoo, Lashkar, Gwalior was owned by the defendant No. 1. The defendant No. 1 entered into an agreement to construct a multistory building with defendant No. 2, who is a builder. As per agreement, ground plus three storeyed building namely Diamond Complex with basement was constructed and flats in the said building were sold. In the present case, the plaintiffs are flat owners in the said building. The said building is registered under the provisions of Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 1976 (hereinafter referred to as 'the Adhiniyam, 1976'). The case of the plaintiffs is that the defendants after construction the building are trying to construct shops in the basement, which is reserved for a parking area and selling it to third persons. The case of the defendants is that the plaintiffs have no right in the basement. The parking space is separately provided for the flats owner and reserved parking is allotted to them on payment of Rs. 5,000/-. It is further stated that since the plaintiffs have no right in the basement, the defendants have right to construct the shops and sell it to the third person. It is also alleged that the bye-laws of the building provides for sale of shops to any person and therefore the defendants have right to construct the shops in the basement and alienate the same. The Trial Court after hearing the arguments of the parties and perusing the records rejected the application by holding that the bye-laws of the building provides for construction of shops in the basement. The basement can be used only for shops and offices and parking space is separately allotted to flat owners and therefore they have no right to restrain the defendants from construction the shops and alienating the same.
3. For proper disposal of the case, it is necessary to first refer to various legal provisions applicable to the building in question. As already stated, the building is registered under the provisions of Adhiniyam, 1976. Section 2 of the Adhiniyam, 1976 provides that the Adhiniyam shall apply only to the property, which has registered a declaration under the provisions of the Adhiniyam. In the present case, the declaration in respect of said building is registered with the Sub-Registrar. Section 3 of the Adhiniyam, 1976 lays down the definition. Section 3 (f) of the Adhiniyam defines common areas and facilities and the said Section reads as under :--
'(i) the land on which the building is located;
(ii) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of the building;
(iii) the basements, cellars, yards, gardens, parking areas and storage spaces;
(iv) the premises for the lodging of janitors or persons employed for the management of the property;
(v) installation of central services, such as power, light, gas, hot and cold water, heating, refrigeration air conditioning and incinerating;
(vi) the elevators, tanks, pumps, motors, fans, compressors ducts and in general all apparatus and installations existing for common use;
(vii) such community and commercial facilities as may be provided for in the declaration; and
(viii) all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use.'
Section 3 (j) defines the word 'declaration' means the instrument by which property is submitted to the provisions of this Act and such declaration as from time to time may be lawfully amended. Section 6 of the Adhiniyam, 1976 provides for common areas and facilities. As per Section 6(1), each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration. In the present case, the declaration does not contain the percentage of undivided interest in the common areas. However, the said declaration says that every owner shall have undivided interest in the common areas proportionately to the area purchased by him. Sub-section (2) of Section 6 of the Adhiniyam provides that the percentage of the undivided interest of each apartment owner in the common areas and facilities shall have a permanent character and shall not be altered without the consent of all the apartment owners expressed in an amended declaration duly executed and registered as provided by the Adhiniyam. The percentage of undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument. Sub-section (3) of Section 6 of the Adhiniyam provides that the common areas and facilities shall remain undivided, and no apartment owner or any other person shall bring any action for partition or division of any part thereof unless the property has been removed from the provisions of this Act. Sub-section (4) of Section 6 of the Adhiniyam provides each apartment owner may use the common areas and facilities in accordance with the purpose for which they are in intended without hindering or encroaching upon the lawful rights of the other apartment owners. Sub-section (5) of Section 6 of the Adhiniyam provides maintenance of common areas while Section 7 of the Adhiniyam provides compliance with covenants, bye-laws and administrative provisions. Section 11 of the Adhiniyam provides for necessary contents of declaration. Sub-clause (d) of Section 11 provides for description of the common areas and facilities. Thus as per this section, it is necessary to describe the common areas and facilities in the declaration. Section 12 of the Adhiniyam provides that particulars to be included in the deed of apartments. Sub-clause (d) of Section 12 also provides the percentage of undivided interest appertaining to the apartment in the common areas and facilities. Section 13 of the Adhiniyam provides for the declaration and all amendments thereto and the Deed of Apartment in respect of each apartment and the floor plans of the buildings referred to in Sub-section (2) shall be registered as per provisions of Registration Act, 1908. Sub-section (2) of Section 13 of the Adhiniyam provides that simultaneously with the registration of the declaration shall be filed alongwith it a set of the floor plans, of the building showing the layout, location, apartment numbers and dimensions of the apartments, stating the name of the building and bearing the verified statement of an architect certifying that it is an accurate copy of portions of the plans of the building as filed and supported by local authority with in whose jurisdiction the building is located. Thus Sub-section (2) of Section 13 provides that the declaration shall be accompanied with a plan of the building alongwith a certified copy of plan and a certificate of architect certifying that it is accurate copy of the plan. The said plan should be sanctioned by the local authority and that plan simultaneously filed with the declaration at the time of registration. Section 16 of the Adhiniyam provides for creation of bye-laws for the management of the building.
4. The State Government has also framed rules for the Madhya Pradesh Prakoshtha Swamitva Rules, 1976, which provides for the formation in which the bye-laws and the declaration are to be submitted. As per Form 'A', every declaration shall describe common and facilities including the area of basement provides in the building. The other provisions which governs the building activities in the State of Madhya Pradesh Bhumi Vikas Rules, 1984 (hereinafter referred to as 'the Rules, 1984'). Rule 54 of the Rules, 1984 provides for classification of building such as residential, educational, institutional, assembly, business, mercantile, industrial, storage and hazardous. The present building is admittedly a residential building. The said rule also provides for height, size of staircase, kitchen, rooms, bathrooms etc. Rule 73 of the Rules, 1984 provides with basement. Sub-rule (1) of Rule 73 provides that basement shall not be used for residential purpose. Sub-rule (2) of Rules 73 provides for construction of the basement shall be allowed by the authority in accordance with the land used and other provisions specified under these rules. Sub-rule (3) of Rule 73 provides for basement may be put to only the following uses:--
(a) Storage or household or other goods of ordinarily combustible materials;
(b) Strong rooms, bank cellars;
(c) Air conditioning equipment and other machine used for services and utilities of the building; and
(d) Parking spaces.
Thus, basement can be used only for four purposes, i.e., for storage of goods, air conditioning equipment and other machine for services and utilities of the building and parking spaces. No other uses is provided by Section 73 of the Rules, 1984 and, therefore, basement can not be used for any other purposes other than four purposes laid down in the rules. Rule 73 (3) of the Rules, 1984 reads as under :--
'(3) Basement may be put to only the following uses to be constructed within the prescribed set-backs and prescribed building lines and subject to maximum coverage on floor 1 (entrance floor):--
(a) Storage or household or other goods of ordinarily combustible materials;
(b) Strong rooms, bank cellars;
(c) Air conditioning equipment and other machine used for services and utilities of the building; and
(d) Parking spaces.'
5. Now in the present case, the declaration, which is registered under the Adhiniyam provides that the building shall consist of ground floor, three upper floors and basement. The declaration mentions the approved map of the building is annexed with the declaration. Though the declaration filed before this Court is not attached with the map. The declaration further provides that ground floor and upper stories shall be exclusively used for residential purposes and the flat owners shall have undivided interest in the common areas and facilities. Page 3 of the declaration describes common areas and facilities. Sub-clause (1) provides that parking space shall be as shown in Annexure 'K' and 16 sq. mt. of the land. Other clauses mentioned in the declaration are just a reproduction of the statutory requirement of the Adhiniyam. The said declaration is also accompanied by bye-laws. Sub-clause (2) of the bye-laws provides that building shall consist of 20 flats and basement shall be used for the manner provided in the bye-laws. Sub-clause (7) of the bye laws provides that the reserved parking area will be allotted to the flats owner, who deposit Rs. 5,000/- so that their parking area will be reserved in the building. The remaining flats owner can park their vehicles in the common areas, which is not reserved for parking area for any flats owner. Clause 17 of the bye-laws provides that the common areas will be used by the flats owner jointly. It is also provided that no flats owner can use the building for shops, business, offices, godowns or commercial purposes. Only basement can be used for shops, business, offices, godowns or commercial purposes. Thus Clause 17 of bye-laws provides that basement can be used for construction of shops, offices or for commercial purposes. Relying on this clause, the defendants started construction the shops and alienating the same. Hence, the present suit was filed.
6. The Trial Court by the impugned order has rejected the application filed under Order XXXIX Rules 1 and 2 mainly relying on this Sub-clause by referring it in Para 8 of its impugned order.
7. Now, the question is whether the basement can be used for the purposes of shops, offices, godowns etc. The bye-laws which is accompanied with the declaration provides for the same, while the registered declaration does not provide for use of basement for such purposes. The declaration merely provides for common facilities as shown in map 'K' and 60 sq. mt. as parking space. Though, it is not specifically mentioned in the declaration that basement shall be used for parking purposes, but it provides as mentioned in the map 'K' the said map is not filed by either of the parties in the present case. The Trial Court by order dated 23-7-96, 1-8-96, 20-8-96, 19-9-98 and 14-7-2000 has directed the plaintiffs to file the said map, but the said map is not filed by the plaintiffs in the case. Moreover, proceeding dated 20-2-2001 shows that when plaintiffs paid process fee for summoning the map from the office of the Sub-Registrar and Corporation, it was informed to the Court that the map attached with the declaration is missing from both the offices. As in spite of repeatedly directions-issued by the Trial Court the map is not produced by the defendants, hence adverse reference can be drawn against the defendants for non-production the map. Now the question is what is the effect of such provisions in the bye-laws. The bye-laws are framed under Section 16 (2) of the Adhiniyam, 1976, which reads as under :--
'(2) The bye-laws shall provide for the following matters, namely:--
(a) the election from among the apartment owners of a Board of Managers, the number of persons constituting the same, and that the terms of at least one third of the members of such Board shall expire annually; the powers and duties of the Board, the compensation, if any, of the member of the Board, the method of removal from office of members of the Board; and whether or not the Board may appoint a Secretary, a Manager or Managing Agent, and specifying which of the powers and duties granted to the Board by this Act or otherwise may be delegated by the Board to either or both of them;
(b) method of calling meeting of the apartment owners, what percentage if other than a majority of apartment owners, shall constitute a quorum;
(c) election of President from among the members of the Board of Managers who shall preside over the meeting of such Board and of the association of apartments owners;
(d) election of a Secretary who shall keep a minute book wherein resolutions shall be recorded;
(e) election of a Treasurer who shall keep the financial records and books of accounts;
(f) maintenance repair and replacement of the common areas and facilities and payment therefor;
(g) manner of collecting from the apartment owners their share of the common expenses;
(h) designation and removal of persons employed for the maintenance, repair and replacement of the common areas and facilities;
(i) the method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities;
(j) such restrictions on the requirements respecting the use and maintenance of the apartments and the use of the common areas and facilities not setforth in the declaration as are designed to prevent unreasonable interference with the use of their respective apartments and of the common areas and facilities by the several apartment owners;
(k) the percentage of the votes required to amend the bye-laws.'
8. A bare reading of Sub-section (2) of Section 16 of the Adhiniyam, 1976, it is clear that bye-laws can be framed by election purposes, management of the apartment, calling of meeting, election of President, election of Secretary, election of Treasurer, manner of collecting from the apartment, appointment of employees and their removal etc. Section 16 of the Adhiniyam nowhere provides that bye-laws can be framed for constructing shops, godowns, offices etc. Therefore, Clause 17 of bye-laws is clearly beyond the scope of Section 16 of the Adhiniyam and is contrary to law. The requirements of bye-laws are provided in Form 'B' framed under the rules. Thus, Form 'B' nowhere provided that any provisions can be made for permitting the owner of the builder in construct shops, godowns, offices or commercial purposes in the building. Moreover, Rule 73 of the Rules, 1984 provides that basement can be used only for four purposes, i.e., for storage of household or other goods of ordinarily combustible materials, strong rooms, bank cellars, air-conditioning equipment and other machine and parking spaces. Thus no other use is provided by the Rules, 1984. The map of the basement is not on record of the case to show that shops are sanctioned in the basement and even if any map is sanctioned for construction of shops in basement, the same is illegal and violative of Rule 73 of the Madhya Pradesh Bhumi Vikas Rules, 1984. In such circumstances, any provisions made in the bye-laws or even in the sanctioned map for providing shops, godowns, offices or commercial purposes in the basement will be illegal and contrary to law. In such circumstances, the Court has erred in refusing to grant injunction and permitting the defendants to construct the shops and sell it to other person.
9. Thus considering the fact that the declaration does not provide for construction of shops in the basement and in view of Rule 73 (3) of the Rules, 1984 the plaintiffs have prima facie case in their favour and balance of convenience is also in favour of the plaintiffs, and if construction is made, then it will cause irreparable loss to the plaintiffs, who will be deprived from their right to use common areas and facilities provided in the Adhiniyam.
10. In the result, the appeal succeeds and is allowed. The impugned order is hereby set aside and respondents are restrained from constructing any shops, godowns, offices or any other construction, which is not permissible under Rule 73 of the Rules, 1984 and sell it to any third person, as flats owner have right to use the common areas and facilities of undivided interest in the building in question.