Shree Ahuja Properties Private Ltd and Another Vs. Shewa Apartments Co-op Housing Society Ltd and Others - Court Judgment

Excerpt:
p.n. kashalkar, judicial member: 1. these two appeals are filed against the order passed by district forum, mumbai suburban in consumer complaint no.560/2010 decided on 30/06/2011. the consumer complaint was allowed and opponent no.1-mr.khubchand hemandas setpal and opponent no.2-m/s.ahuja properties pvt. ltd. have been directed to execute deed of conveyance in favour of complainant-society within eight weeks and also directed to pay rs. 15,000/- towards costs. aggrieved by said award, org. opponent no.1- mr.khubchand hemandas setpal has filed appeal no.730/2011 and org. opponent no.2- m/s.ahuja properties pvt. ltd. has filed appeal no.693/2011 challenging the said order. as such both these appeals have to be disposed of by this common judgement and therefore, we are so disposing of these.....

Judgment:

P.N. Kashalkar, Judicial Member:

1. These two appeals are filed against the order passed by District Forum, Mumbai Suburban in consumer complaint No.560/2010 decided on 30/06/2011. The consumer complaint was allowed and opponent No.1-Mr.Khubchand Hemandas Setpal and opponent No.2-M/s.Ahuja Properties Pvt. Ltd. have been directed to execute Deed of Conveyance in favour of complainant-society within eight weeks and also directed to pay Rs. 15,000/- towards costs. Aggrieved by said award, org. opponent No.1- Mr.Khubchand Hemandas Setpal has filed appeal No.730/2011 and org. opponent No.2- M/s.Ahuja Properties Pvt. Ltd. has filed appeal No.693/2011 challenging the said order. As such both these appeals have to be disposed of by this common judgement and therefore, we are so disposing of these two appeals by common judgement.

2. The facts to the extent material may be stated as under:-

In both these appeals respondent No.1 is Shewa Apartments Co-operative Housing Society, Khar (West), Mumbai. It is the co-op. housing society consisting of 2to27 members as far as original list given in consumer complaint No.560/2010. This complaint therefore was filed by the society with 2to27 tenant members with the complainant-society against owner of the building and also against builder/developer M/s.Ahuja Properties Pvt. Ltd. including the Municipal Commissioner, MCGM, Chief Engineer of same Corporation and they also impleaded Mr.Ramchandra H. Satpal and M/s.Morarji G. Spg. and Weaving Co. Ltd. as opponents. According to complainant/society, complainant/society was registered on 25/05/1989 and complainant/society is in possession of plot No.33 B having area of 2123.44 sq.mtrs. On this plot there were four buildings out of which three buildings were demolished and six buildings were constructed in their places. Those six buildings are in possession of the complainant-society. These buildings were constructed in 1985-86 and by the side of these buildings on the said plot at one place there was another old structure having ground floor and first floor. It was occupied by tenants. It was not demolished at that time. According to the complainant/society, opponent Nos.1and2 demolished said old structure which was occupied by tenants and they intended to construct new buildings in place of old structure. Opponent No.1 has given development rights to opponent No.2 for re-development of said structure after demolition and said structure was already demolished and I.O.D. has been obtained from the Municipal Corporation. While constructing building opponent Nos.1and2 are intending to use F.S.I. available in place of demolished structure and also T.D.R. which is now permissible since 1994 after amendment of DC Rules and complainant/society pleaded that their T.D.R. is sought to be utilized by opponent Nos.1and2 who are appellants in these two appeals. But they should do so only after taking permission of the complainant/society because societys rights would be badly affected if they are allowed to construct buildings as per I.O.D. granted by the Municipal Corporation. Complainant/society pleaded that after formation of the society, complainant/society had sent notices since 1991 to opponent Nos.1and2 and requested them to execute Conveyance Deed in favour of the society, but opponent No.1 has not given Conveyance Deed. On the other hand they are intending to demolish old structure and raise new buildings on the same structure by utilizing F.S.I. and T.D.R. Hence, they had sent notice after notice but opponent Nos.1and2 while giving reply to the notices clearly stated that they were not required to obtain prior permission of the society as in the individual agreement executed between builders/opponent No.1 and flat purchasers, who have now formed co-operative Society, it has been clearly mentioned that fourth building which was ground floor + first floor structure would be demolished and that owner is retaining the rights to develop said property as well as rights to develop the property in place of fourth building which was then occupied by tenants and the purchasers shall not have any rights to object for the construction and development of the building on the portion of land so reserved by making special mention in the agreement executed by the builder in favour of the flat purchasers of which complainant/society has been formed. Therefore, they refused to seek permission of the complainant/society for their intended redevelopment work. Hence, complainant/society filed consumer complaint and prayed that opponents should be directed to procure completion certificate and to execute deed of conveyance of whole of the plot in their favour.

3. Opponent Nos.1and2 filed written version and admitted that plot No.33B was having area of 2123.44 sq.mtrs and in that plot, there were four buildings previously of which three buildings were ground floor structure and one was ground floor + first floor structure. The three ground floor structures were demolished and six buildings were constructed by opponent No.1 and flats of the said buildings were sold to the flat purchasers who have formed society i.e. complainant/society. While selling flats, in all the individual agreement for sale executed by the builder in favour of the flat purchasers, it has been clearly mentioned that builder was reserving rights to demolish ground floor + first floor structure i.e. fourth building as per his convenience after tenants vacated said building and that builder shall have all the rights to develop said property by constructing new buildings with available F.S.I. and/or T.D.R and that the flat purchasers shall not have any rights to object the construction undertaken by the builder in place of fourth building which would be demolished after tenants vacated the premises. In view of this special condition mentioned in the flat purchasers agreement opponent Nos.1and2 pleaded that the complainant/society or flat purchasers cannot have any individual rights to object to the intended development by opponent Nos.1and2 in place of fourth building which was ground floor + first floor which has been now got vacated from the tenants and I.O.D. has been obtained from the Municipal Corporation to construct the buildings in place of old structure. Opponent Nos.1and2 clearly stated that they are ready to execute Conveyance Deed provided their rights to redevelopment fourth building is kept intact, but complainant/society is not agreeing to make any reservation and therefore, they have not yet executed Deed of Conveyance. They also pleaded that out of 2to27, 17 complainants are not the original flat purchasers since they have sold the flats to new persons and therefore, newly inducted persons by the original flat purchasers have no privity of contract with them and on this ground they pleaded that they cannot have any prayer against opponent Nos.1and2 seeking Conveyance Deed from them in respect of flats occupied by them. They are not even consumers of opponent Nos.1and2. They had also raised plea that the complaint as filed by the complainant/society is absolutely barred by limitation. Both the parties filed affidavits in support of their claims.

4. District Forum after considering rival contentions framed issues. First issue was as to whether opponents were deficient in service in not executing Deed of Conveyance in favour of complainant/society. The issue was answered in the affirmative as against the appellants. Second issue was whether there is substance in the contention of the opponents that they should be permitted to execute Conveyance Deed only after they developed fourth building after demolition and inducting new flat purchasers in the newly constructed buildings. But, District Forum did not agree with the submissions of the opponents and directed that opponent Nos.1and2 should execute Conveyance Deed within eight weeks from the date of receipt of the order and also directed to pay Rs. 15,000/- as costs jointly to all the complainants. Aggrieved by this order, org. opponent No.1 has filed Appeal No.730/2011 and org. opponent No.2 has filed Appeal No.693/2011.

5. We heard submissions of Ms.Helina Desai, Advocate Proxy for M/s.Wadia Ghandy and Co., Advocate for appellant in Appeal No.693/2011, Mr.Simil Purohit, Advocate Proxy for M/s.Ganesh and Co., Advocate for appellant in Appeal No.730/2011 and Mr.S.B. Prabhawalkar, Advocate for respondents/org. complainants in both appeals.

6. It is submitted by Learned Counsel for the appellants that while executing agreement of sale with the prospective purchasers of the three buildings, following clauses were clearly incorporated in the agreement. They are recital (o) and clause (13) of the agreement –

“RECITAL (o)

“the Vendor has further informed the Purchasers and as per the plan of Bombay Municipal Corporation the old structure of ground and first on the said property occupied by the tenants shall continue to remain there and for the said purpose the Vendor shall become member of the proposed Co-operative Society/Limited Company/Association of persons/Condominium and the tenants shall continue to be the tenants of the Vendor alone. On demolishing the said old structure in further the Vendor shall be entitled to construct a new building thereon in the said property and use the balance FSI available on the said property and shall be entitled to dispose of the same to intending purchaser on the terms mentioned herein.”

CLAUSE (13)

“the Vendor shall have a right until execution of a conveyance in favour of the proposed society to consume and utilize the full FSI available for construction till then and to make addition or raise additional storeys as may be permitted by the Bombay Municipal Corporation and other competent authorities. Such additions structures and storeys will be the sole property of the Vendor who will be entitled to dispose of the same or the flat therein in any way he chooses and the Purchasers hereby consent to the same. The agreement with the purchasers as well as with all the acquirers of the flats in the said building shall be subject to the rights of the Vendor herein contained and declared and the Purchasers shall not be entitled to raise any objection or to claim any abatement in the price of the flats agreed to be acquired by them and/or compensation or damages on the ground of inconvenience or any other grounds whatsoever.”

7. Then there was clause Nos.10 and 11 in the agreements, which are executed with the tenants of the three buildings which were subsequently demolished. These clauses are as under:-

CLAUSE (10)

“the Owner shall have a right until execution of a conveyance in favour of the proposed society to consume and utilize the full FSI available for construction till then and to make addition or raise additional storeys as may be permitted by the Bombay Municipal Corporation and other competent authorities. Such additions structures and storeys will be the sole property of the Owner who will be entitled to dispose of the same or the flat therein in any way he chooses and the Tenants-Purchasers hereby consent to the same. The agreement with the tenants-purchasers as well as with all the acquirers of the flats in the said building shall be subject to the rights of the Owner herein contained and declared and the Tenants-Purchasers shall not be entitled to raise any objection or to claim any compensation or damages on the ground of inconvenience or any other grounds whatsoever.”

CLAUSE (11)

“Provided that the Owner does not in any way affect or prejudice to the rights hereby agreed to be granted in favour of the Tenants-Purchasers in respect of the said flat hereby agreed to be acquired by the Tenants-purchasers. The Owner shall be at liberty to sell, assign or otherwise deal with or dispose of his right, title and interest in the said land hereditaments and premises or any portion thereof and the building under construction and to be hereafter constructed thereon.”

8. From these clauses it is very clear that appellants had reserved rights as set out in both sets of MOFA agreements entered into with the prospective purchasers or with the tenants, who later on become prospective purchasers that some area of the plot has been retained by the appellants/developers for construction for buildings after demolition of fourth building which was a structure consisting of ground floor + first floor and under these clauses it has been clearly mentioned that an order has been passed by the Additional Collector and Competent Authority under the U.L.C. in respect of redevelopment of the land. In the said order respective area of the plot was mentioned as total plot being 2123.44 sq.mtrs., Plinth area of the retained structure i.e. tenanted building - 206.49 sq.mtrs., the appurtenant area to the retained structure - 391.12 sq.mtrs. and additional appurtenant area to the retained structure - 500 sq.mtrs. So, all the respondents were knowing that there was condition of retention of tenanted building and the appurtenant land admeasuring approximately 1097.61 sq.mtrs. which was retained with the right to redevelop the same and utilize F.S.I. arising therefrom and therefore, it was contended before us that respondents were estopped from saying that they were not aware of the same. Appellants also contended that in terms of retention clause mentioned above they have obtained I.O.D. from the Municipal Corporation, Greater Mumbai with an intent to enable original opponent No.2/M/s.Ahuja Properties Pvt. Ltd. who is appellant in the A-693/2011 to redevelop said property after demolishing tenanted building and accordingly in the year 2001 both the appellants entered into development agreement dated 14/06/2001. It was executed between Shri Khubchand H. Setpal and Shri Ramchand H. Setpal carrying business in the name of M/s.Assomal Manghanmal Karachiwala and M/s.Ahuja Properties Pvt.Ltd. appellant in Appeal No.693/2011 and under the said development agreement, appellant-M/s.Ahuja Properties Pvt. Ltd. acquired rights to develop and construct the new buildings in place of fourth building by demolishing the same which was then occupied by thirteen tenants and by utilizing the resultant F.S.I. of 4300 sq.ft. and T.D.R. of the entire plot i.e. 19220 sq.ft. for consideration and further under the Deed of Confirmation dated 29/06/2007 which was registered with the Sub-Registrar of Assurances. This development agreement was entered into between these two appellants and accordingly, now M/s.Ahuja Properties Pvt. Ltd. is entrusted with the construction of new building or group of buildings after demolishing fourth building which was ground floor + first floor structure and they have been given irrevocable power of attorney in terms of development agreement. Power of attorney was dated 09/07/2002. According to the appellants, society then sent notice on 16/10/2008 through Advocate Mr.Mohit Bhansali and served copy of consumer complaint and then in the consumer complaint District Forum had granted ad-interim injunction which was confirmed by the State Commission by order dated 17/03/2011 which was challenged before the National Commission, but National Commission directed that hearing of original complaint should be expedited and till then there would be statusquo order already passed by the District Forum. It was contended before us by the appellants in both the appeals that appellants were entitled to tenanted building exclusively and appellants were entitled to consume F.S.I. of said plot in accordance with the law despite the fact that the Society formed by the flat purchasers of the buildings which were constructed earlier after demolishing old three ground floor structures. It was also contended before us that old tenanted structure was/is still in possession of the appellants and their successors in interest and finding recorded by the District Forum that same is in possession of Society is contrary to the facts and said finding is absolutely perverse. It was also contended before us by both the Advocates appearing for both the appellants that the District Forum erred in holding that before initiating work consent of respondents/society was not obtained in terms of Maharashtra Ownership of Flats Act, 1963 agreements. They submitted that consent of the society was not at all necessary in view of retention clause in the agreements executed by the appellants/Khubchand H. Setpal in favour of individual flat purchasers before they formed co-operative society in terms of respondent No.1.

9. In the case of Jayantilal Investments V/s. madhuvihar Co-op. Housing Society and Ors., (2007) 9 SCC 220, it has been clearly laid down by the Supreme Court that once the entire project is placed before the flat takers at the time of the agreement, then the promoter is not required to take prior consent of the flat takers as long as the builder puts up additional construction in accordance with the layout plan, building rules and Development Control Regulations. The Supreme Court also considered the object behind all the amendment of Section 7(1)(ii) and insertion of Section 7-A in the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 vide Maharashtra Act 36 of 1986. Section 7 as it stood originally was as under:-

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

”The amended Section 7 reads as under:-

“7. After plans and specifications are disclosed no alterations or additions without consent of person who have agreed to take the flats; and defects noticed within three years to be rectified.- (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 ore more flats, the promoter shall not make –

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

(ii) any other alterations or additions in the structure of the building without the previous consent of all the person who have agreed to take flats in such building.”

10. By insertion of Section 7-A by Maharashtra Act 36 of 1986, the Legislature had made it clear that the consent of flat takers was never the criteria applicable to the construction of additional buildings by the promoters. The object behind the said amendment was to give maximum of weightage to the exploitation of development rights which existed in the land. Thus, the intention behind the amendment was to remove the impediment in the construction of the additional buildings, if the total layout allows construction of more buildings, subject to compliance with the building rules or building bye-laws or Development Control Regulations. At the same time, the Legislature had retained Section 3 which imposes statutory obligations on the promoter to make full and true disclosure of particulars mentioned in Section 3(2) including the nature, extent and description of common areas and facilities. As stated above, sub-Section (1-A) to Section 4 was also introduced by the Legislature by Maharashtra Act 36 of 1986 under which the promoter is bound to enter into agreements with the flat takers in the prescribed form. Under the prescribed form, every promoter is required to declare F.S.I. available in the said land. The promoter is also required to declare that no part of F.S.I. is used elsewhere and if it is utilized, the promoter has to give particulars of such utilization to the flat takers. Further, under the proforma agreement, the promoter has to further declare utilization of F.S.I. of any other land for the purposes of developing the land in question which is covered by the agreement. Thus, intention of the provision contained in Section 7 and 7-A appeared to be that no additional or alterations in the construction of the building by the builder/developer or promoter without consent of all the persons who had agreed to take flats in said building. In Jayantilal case, the Supreme Court held that the above condition of true and full disclosure flows from the obligation of the promoter under MOFA vide Sections 3 and 4 and Form V which prescribes the form of agreement to the extent indicated above. This obligation remains unfettered because the concept of developability has to be harmoniously read with the concept of registration of society and conveyance of title. Once the entire project is placed before the flat takers at the time of the agreement, then the promoter is not required to obtain prior consent of the flat takers as long as the builder puts up additional construction in accordance with the layout plan, building rules and Development Control Regulations, etc. It is this observation which is very material and crucial to decide the appeals in questions. In this case it was held that after layout and specifications of the buildings as approved by the Competent Authority are disclosed to the flat takers, the promoter shall not make any alterations or additional constructions without consent of the flat takers. So, whether full disclosure made by the builder/promoter in respect of Section 7-A was a question which was required to decide by the Honble High Court and therefore, in this case, the matter was remanded to High Court for reconsideration.

11. In the case of Shailaja Kamalakar Limaye V/s. Nilkanth Ganesh Pethe and Ors, 2010 (4) Maharashtra Law Journal, it was found that defendant No.2 as per approved plan of the plot No.42 was to construct two buildings on the said plot, building No.2 was constructed on the portion of plot admeasuring 590 sq.mtrs. Plaintiffs purchased flats in building No.2. One more building was to come up on the plot and this was the fact known to the plaintiffs and it was disclosed to them at the time of entering into the agreement of sale of respective flats. Question is as to whether at the instance of plaintiffs, injunction is to be been granted restraining the builders from carrying on intended construction. The Division Bench of the Bombay High Court held that the builder has disclosed material facts that he was going to put up two buildings while entering into the agreement of sale with the plaintiffs. Therefore, the plaintiffs could not be permitted to seek injunction against the builder/developer when he was trying to enforce his right of constructing one more building as per already disclosed plan.

12. In the of Manratna Developers V/s. megh Ratan Co-operative Housing Society Ltd. and Ors., 2009(2) Mh.L.J., the Bench of Honble Chief Justice and Honble Judge held that respondent/plaintiff was seeking injunction to restrain appellant-defendants from carrying on construction. The Local Authority has sanctioned modified plan on being satisfied that the defendants were not constructing anything in excess of what is permissible. Amenities in the form of recreation ground are, in no way, reduced. It was held that balance of convenience was in favour of defendants. Defendants had prima facie complied with requirement of true and full disclosure. In view of insertion of Section 7-A to Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, plea of consent of flat owners was not obtained was not tenable in law. Therefore, no injunction could be granted.

13. In the case of Grand Paradi Co-operative Housing Society Ltd. and Ors. V/s. Mont.Blanc Properties and Industries Pvt. Ltd. and Anr (Appeal No.599/2002 decided on 20/04/2010), the Division Bench of Bombay High Court held that intention behind the amendment was to remove impediments in the construction of the additional buildings, if the total layout allows construction of more buildings, subject to compliance with the building rules or building bye-laws or Development Control Regulations. The High Court observed that it is thus clear that the builder is always entitled to raise additional structures if he discloses the additional structures in the layout plan itself at the time when he sales the flats.

14. In our case, it is clearly established by the appellants that the builders had in the individual agreement entered into with the flat purchasers clearly stipulated that there would be retention area and they would be retaining some portion of land for the purpose of demolition of fourth existing tenanted building and they would be demolishing it after tenants vacated said building and after F.S.I. available under the Development Control Regulations prescribed by the Local Authority, they would be raising said buildings and this was made known to every flat purchasers of complainant/society-respondent No.1 in these two appeals. So, when there is a clause to that effect in the agreement entered into with the flat purchasers and also with the tenants, who occupied premises in the earlier building, which was sought to be developed recently, we are of the view that consent of complainant/Society in both these appeals is not at all required in view of full and true disclosure made by the promoter while executing individual agreement of sale with the flat purchasers who are now members of respondent No.1/Society.

15. In the case of Fairview Co-operative Housing Society V/s. Savinder S. Rekhi and Ors., reported in 2008(2) Bom.C.R.436 (O.S.), Honble Bombay High Court (Single Bench) clearly held that while conveying a part of plot to a co-operative society, Preeti Sahu owner retained a part of it and with specific covenant that he will be entitled to additional T.D.R. as may be available on whole plot and society will issue no objection to same. Defendants through Preeti Sahu is seeking sub-division of plot and right to avail T.D.R. on entire plot as permissible under rules and plaintiff society is objecting to same and is refusing to grant defendants T.D.R. on whole plot, the Honble High Court held that plaintiffs had agreed in deed of 1964 itself that additional F.S.I. as may be available as per rules on whole plot will belong to vendor Preeti Sahu. Society cannot now turn back and deny same to defendants claiming through vendor. This was a solemn obligation assumed by plaintiff-society and they cannot now complain about utilization of T.D.R. by defendant 1to5 to whom benefits of covenant have been transferred by vendor. This right cannot be interdicted by plaintiffs. It was also held that there was no justification for plaintiffs to seek injunction reliefs against the defendants from loading or utilizing T.D.R. on the part of land for subject matter of the suit.

16. In the instant case, when the agreement of sale were executed by appellants in Appeal No.730/2011 in favour of flat purchasers who are now members of respondent No.1/Society, it has been clearly told to them in various clauses of the agreement that the vendor or developers are retaining some portion of land which was covered by old fourth building which was tenanted building which he would be getting vacated from the tenants and which he would be developing subsequently and that he would have right to do so and flat purchasers would not take objection to the same when it would in fact initiate development activity on the said portion of land. This was covenant expressly mentioned in all the agreements entered into by builder/developer with the flat purchasers and builder/developer in turn had given development rights to M/s.Ahuja Properties Pvt. Ltd. to utilize and develop the buildings on the piece of land retained by the builder/developer and M/s.Ahuja Properties Pvt. Ltd. is now intending to construct buildings as per duly sanctioned plan by Municipal Corporation of Greater Mumbai permitting him to develop with available F.S.I. and T.D.R. and therefore, under the garb of filing consumer complaint, the District Forum ought not have directed the appellants-Mr.Khubchand H. Setpal and Ors. to execute conveyance of whole of the plot without incorporating retention clauses in spite of right of the builder to develop buildings in place of ground floor + first floor structure with available F.S.I. and T.D.R. if any. At that time concept of T.D.R. was not there. T.D.R. concept came into picture after amendment to the Developer Control Regulations in 1994. Now in the changed scenario, F.S.I. as well as T.D.R. can be utilized by the builder if he has retained some portion of land for redevelopment and when this was the disclosure made known to the flat purchasers while executing agreement of sale between flat purchasers and appellants in Appeal No.730/2011.

17. In the case of Jamuna Darshan Co-operative Housing Society V/s. M/s.JMC and Meghani Builders and Ors. in pending Suit No.3938/2001 while deciding Notice of Motion No.2220/2007, the Honble High Court (Single Bench) by its order dated 21/09/2007 held that defendant No.1-builder cannot be restrained from carrying out construction on the piece of land reserved by him for the purpose of development if he wanted to exploit available F.S.I. on the said plot because he was going to do so as per sanctioned plan and there was nothing in the agreement between plaintiff and defendant No.1 which prohibited him from making construction. It was held that in absence of express provision prohibiting the builder from exploiting the available F.S.I. in respect of the plot, the flat purchasers cannot be heard to obstruct development activity in relation to the open plot so long as their original structure and flats remain unaltered and undisturbed. Honble High Court relied upon the provisions of Section 7-A of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 and so, applied ruling of the Supreme Court given in the case of Jayantilal, mentioned supra. Thus, there are many rulings which clearly mentioned that if a builder has retained some portion of plot for his own development at the later stage and this was true and correct disclosure made in the agreement of sale between the flat purchaser, the builder could not be denied right of redevelopment on the said portion of land retained by him in view of true and correct disclosure made by the builder while entering into all agreement of sale with the flat purchasers. Thus, the conveyance directed to be executed by the District Forum of whole of the plot of land overlooking important retention clauses found in the agreement of sale executed by the appellant in Appeal No.730/2011 with the flat purchasers, who are members of respondent No.1/society, cannot be upheld. By allowing both these appeals, it is held that builder has right to develop the reserved portion of piece of land and to this extent they have right to mention about their retention power of redevelopment of same portion of land to the extent of 1097.61 sq.mtrs. which was the plot land reserved and retained by the builder/developer for construction of group of building in place of fourth structure which was till then not demolished and it was till then occupied by the tenants and it was known as tenanted building. So far as tenanted building is concerned, the appellant in both the appeals have right to develop said piece of land without objection from flat purchasers individually or from respondent No.1/society in both these appeals in view of specific clauses found in the agreement of sale executed by appellants in Appeal No.730/2011 in favour of flat purchasers who are members of respondent No.1/society. So, to this extent both the appeals will have to be allowed by partly modifying the order passed by the District Forum. Hence, we pass the following order:-

ORDER

Both appeals are partly allowed.

1. Appellants in both these appeals are directed to execute Conveyance Deed in favour of respondent No.1/Society only to the extent of land covered by the buildings managed and owned by respondent No.1/Society in terms of agreement of sale executed between flat purchasers of said Society and the builder/developer. But it is made clear that property retained by the appellants in terms of retention clause in the agreement of sale shall be liable to be developed by the appellants in Appeal No.693/2011 squarely in respect of retained portion of plot along with available F.S.I. and T.D.R. in respect of that portion of plot only and not on the whole plot of land.

2. Parties to bear their own costs.

3. Copies of the order be furnished to the parties.