2007 (2) TMI 664 - HC - Indian Laws

Appeal Partly Allowed: Court Upholds Property Sale Agreement, Modifies Injunction on FSI/TDR, Denies Right of Way Injunction.

Chheda Housing Development Corporation Versus Bibijan Shaikh Farid

The appellate court partly allowed the appeal, setting aside paragraph 46 of the impugned order, which had clarified the injunction regarding the ... Suit for specific performance of a development agreement - Non-grant of injunction - denying protections for their right of development of additional 1,00,000 sq.ft. by way of TDR on the suit plot - Whether the appellants have made out a prima facie case that the agreement relied upon was an agreement for sale and not an agreement for security and/or alternatively an agreement for development which could not be specifically performed - HELD THAT:- The learned Single Judge on a consideration of the various documents including the agreement has come to the prima facie finding that the agreement is an agreement to sell, which can be specifically enforced. The respondents, therefore, will have to make out a case that the finding by the learned single Judge is perverse. The view taken by the learned trial Court, ordinarily will have to be upheld,if it was a view capable of being taken, irrespective of the Appellate Court arriving at a conclusion that another view is probable which is a better view and as long as the findings based on which the view is taken are not perverse. Whether on account of the term in the clause which permits acquisition of slum TDR the Appellants in so far as the additional F.S.I.is concerned, are not entitled for an injunction to that extent - In our opinion, the Appellant in the first instance have a right to use F.S.I. of the property and the S.F.I. by whatever name of the reservations of D.P. Road and/or P.G. of the entire property to the extent of 2,00,000 sq.ft. in terms of the agreements. To that extent the learned single Judge clearly erred in law in clarifying the order. Specific performance can be granted of the land or interest in the land, belonging to a person who has agreed to sell the land with interest therein. If the person is not the owner or has no interest in the land agreed to be sold or transferred there is no question of granting specific performance. Slum TDR is not interest on the owners property. It is F.S.I. of some other land which is transferable in terms of D.C. Regulations. TDR may be owned by the holder but not the land from which TDR was generated. It can only be used on the owners property in terms of D.C. Regulation. Therefore, it is the F.S.I. of the entire property, including of R.G. and D.P. Road, which alone in terms of the Agreement, prima facie which can be specifically enforced. In such circumstances irreparable loss and injury would be occasioned to the Appellants, if the injunction is not granted. The balance of convenience is in their favour as compensation in money in such cases, would not be adequate. To that extent, we are clearly of the opinion, that the clarification given in the impugned order is liable to be set aside and we accordingly do so. Whether the Appellants are entitled to right of way as claimed in the Agreement and in the suit - In the instant case this is not an easement of necessity nor an easement by prescription. The only term of the contract was to provide an access. The plot has been sub-divided and the sub-division sanctioned by the Planning Authority. The Appellants are entitled to develop a part of the plot C-2 in terms of the Agreement. Plot No. C-2 has an independent access in terms of the sanctioned sub division. Even in a case of easement of prescription or necessity, the owner can always on the facts of a case alter the access on the same land as long as it is provided on the same property and is easily accessible and does not have any impediments. In our opinion the learned Single Judge prima facie, on the facts, was right in not granting the injunction . We are clearly of the opinion that the Appellants have failed to make out a case irreparable loss or injury at the interim stage, in so far as access is concerned. Thus, appeal is partly allowed to the extent that we set aside of the impugned order of the learned Single Judge. The Cross Objections are rejected. Issues Involved:1. Prima facie case for specific performance of the agreement.2. Entitlement to an injunction to restrain the respondents from alienating, transferring, or using the TDR available from the suit plot.3. Grant of injunction concerning the right of way.Detailed Analysis:1. Prima Facie Case for Specific Performance of the Agreement:The court first addressed whether the appellants made a prima facie case that the agreement was for sale and not merely for security or development. The learned Single Judge, after examining the various documents, concluded that the agreement was indeed an agreement to sell and could be specifically enforced. The respondents needed to prove that this finding was perverse, but the appellate court upheld the trial court's view, noting that it was a plausible interpretation based on the material presented. The court also referenced several judgments to underline that specific performance of a contract for immovable property is generally enforceable unless proven otherwise.2. Entitlement to an Injunction to Restrain the Respondents from Alienating, Transferring, or Using the TDR:The court examined whether the appellants were entitled to an injunction to prevent the respondents from dealing with the TDR (Transfer of Development Rights) or FSI (Floor Space Index) from the suit plot. The court noted that FSI/TDR is a benefit arising from the land and thus constitutes immovable property, which can be specifically enforced. The court found that the appellants were entitled to use the FSI of the property and the additional FSI from the remaining property, but not necessarily the slum TDR, which would require the respondents to purchase it from the market. The court concluded that the learned Single Judge erred in clarifying the order to exclude the appellants' right to the additional FSI/TDR from the suit plot. Consequently, the court set aside the clarification made in para.46 of the impugned order.3. Grant of Injunction Concerning the Right of Way:The appellants sought an injunction for a right of way through Plot No. 2A to Plot A-2 of the respondents' property. The court found that this was not an easement of necessity or prescription but rather a contractual term for access. Since the plot had been subdivided and sanctioned by the Planning Authority, and Plot No. C-2 had independent access, the court agreed with the learned Single Judge's decision not to grant the injunction. The court held that the appellants failed to demonstrate irreparable loss or injury at the interim stage concerning access.Conclusion:The appeal was partly allowed, setting aside para.46 of the impugned order, which had clarified the injunction concerning the additional FSI/TDR. The cross objections filed by the respondents were rejected, and each party was ordered to bear their own costs.