Bombay High Court
M/S. Shree Siddharth ... vs 5 The State Of Maharashtra on 17 October, 2013
Bench: M.S. Sanklecha
ASN 1/24 WP-1439.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1439 OF 2012
M/S. Shree Siddharth Construction
Builders and Developers, a partnership firm
having its office at Diagnostic Centre,
Shop Nos. ½ TPS No.1,
Opp. Vrunda's Hotel, Off L. T. Road,
Borivali (West), Mumbai 400 092.
...Petitioner.
vs.
1 Shree Saraswati Apartment
Co-operative Housing Society Limited
Opp. Bhagwati Hospital, Mandapeshwar Road,
Borivali(W), Mumbai 400 013.
2 M/s. Reliable Constructions Company,
Trade Avenue Building, 5th floor,
Suren Road, Off. Western Express High Way,
Andheri (E), Mumbai 400 069.
3 Saraswati Co-op. Housing Society Ltd.,
Opp. Bhagwati Hospital, S.V .Road,
Borivali (W), Mumbai 400 013.
4 District Deputy Registrar Co-op. Societies,
Mumbai City(3), MHADA Building,
Ground floor, Room No.69, Bandra (E),
Mumbai- 400 051.
5 The State of Maharashtra,
having its office at Mantralaya,
Nariman Point, Mumbai 400 021.
..Respondents.
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Mr. P .K. Dhakephalkar, Senior Advocate with Mr. Gaurav R. Joshi
and Mr. Yogesh Adhia for the Petitioner.
Mr. Sanjay Jain along with Ms. Usha Gadagkar and Ms. Premlata
Yadav i/by Divya Shah Associates for Respondent No.1.
Mr. D.J.Khambata, Advocate General with Mr. J. S. Saluja, A.G.P.
for Respondent State.
CORAM : MOHIT S. SHAH, C.J. AND
M.S. SANKLECHA, J.
Reserved on : 02 September 2013
Pronounced on : 17 October 2013.
JUDGMENT : (M.S. SANKLECHA, J.)
By this petition under Article 226 of the Constitution of
India the petitioner seeks the following reliefs:-
a) A declaration that the amendments
made to Sections 2,5,5A, 10,11 and 13 of the
Maharashtra Ownership of Flats Act,1963
("MOFA") by Act No.4 of 2008 are ultravires,
unconstitutional, null and void.
b) A writ of certiorari to quash and set
aside the order dated 26 March 2012 passed by
the Competent Authority i.e. District Deputy
Registrar (Respondent No.4) appointed under
Section 5A of the MOFA and
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c) A writ of mandamus directing
respondent No.4 and the State of Maharashtra
(Respondent No.5) to cancel the conveyance
dated 30 May 2012 registered with the office of
the Sub Registrar of Assurances, Borivali
consequent to the impugned order dated 25
March 2012 passed by respondent No.4.
2) At the hearing no submissions were made on behalf of
the petitioner with regard to the declaration sought at (a) above
namely, declaring the amendment to the MOFA as
unconstitutional. Therefore, we have had no occasion to consider
the validity or otherwise of the amendment made to the MOFA by
Act No.4 of 2008. So far as the relief sought in clause (c) above is
concerned i. e. cancellation of the conveyance dated 30 May 2012
registered with the Office of the Sub Registrar of Assurances, no
separate submissions were made as the same would be a
consequence of our decision with regard to petitioner's challenge
at (b) above to the impugned order dated 26 March 2012 passed
by respondent No.4 under MOFA.
3) The genesis of the present petition challenging the
order dated 26 March 2012 of respondent No.4 under MOFA is
that the petitioner by an agreement dated 29 December 2007
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purchased the rights of one Dayaram Damodar Acharya
Mithaiwala-HUF (the original owners) in the property i.e. plot of
land admeasuring 4739.77 mtrs. bearing CTS No.1404 and 1404/1
to 23 situated at Borivali ("said property"). Further, the petitioner
by an agreement dated 29 February 2008 also purchased the
rights in respect of the said property available with the Promoter
of the said property namely Reliable Construction Company
(respondent No.2). The original owner had sold certain rights in
respect of the said property to respondent No.2 under agreement
dated 12 November 1980 and subsequent conveyance dated 19
December 1986. The predecessor of the petitioner namely
respondent No.2 had developed the said property and had
constructed its first building thereon in 1982 now known as Shree
Saraswati Apartment Co-operative Housing Society Limited
(respondent No.1) and agreed to sell flats therein by executing
agreements of sale with flat purchasers under the MOFA. The
respondent No.2 constructed its second building in the years
1991-92 now known as Saraswati Co-operative Housing Society
Ltd. (respondent No.3) and agreed to sell flats therein by
executing agreements of sale with flat purchasers under MOFA.
The present proceedings have emanated from an application filed
by respondent No.1 with respondent No.4 seeking an execution
of the deemed conveyance in terms of the sale agreement entered
into by respondent No.2 with individual flat purchasers in the
building of respondent No.1 under MOFA.
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4) Briefly the facts leading to the present petition are as
follows:-
a) The original owners of the said property by an
agreement dated 12 November 1980 agreed to sell the said
property save and except a tenanted chawl existing on the said
property to respondent No.2.
b) Consequent to the above agreement respondent No.2
as a Promoter under MOFA constructed a building comprising
ground plus 6 floors in 1982 and sold flats therein by executing
agreement under the MOFA with individual flat purchasers.
Subsequently, the purchasers of the said flats formed a Co-
operative Society i. e. respondent No.1.
c) On 19 December 1986 the original owners of the said
property executed a conveyance of the said property in favour of
respondent No.2. This conveyance was of the said property save
and except the tenanted chawls in terms of the agreement dated
12 November 1980 as modified and altered by subsequent
agreements as recorded in the conveyance.
d) In 1991-1992, respondent No.2 constructed the
second building of ground plus three floors on the said property.
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The respondent No.2 sold the flats therein by executing
agreements of sale with individual flat purchasers under the
MOFA. The purchasers of the flats in second building formed a Co-
operative Housing Society i.e. respondent No.3.
e) The agreements of sale entered into by the promoter
i.e. respondent No.2 with the buyers of the flats in respect of both
the buildings viz. Respondent Nos. 1 and 3 were identical
agreements under the MOFA. The above agreements of sale of flats
in clause 16 thereof provides that a transfer of the said property to
the society/company/institution as formed by the flat purchasers
would simultaneously transfer an area of 1300 sq. yards to the
original owner.
f) On 29 December 2007 the original owner of the said
property executed a conveyance in favour of the petitioner in
respect of its entire residuary rights in the said property i.e.
tenanted chawl subject to existing tenancies.
g) On 29 February 2008, respondent No.2 executed a
conveyance of the balance of its rights in the said property to the
petitioner. The aforesaid agreement dated 29 February 2008
specifically provided that the petitioner entered into the shoes of
the promoter i.e. respondent No.2 and would at all times do all
things necessary to discharge the obligations of respondent No.2
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qua various flat purchasers to whom flats in the two buildings of
respondent No.1 and respondent No.3 have been sold.
h) In view of the two conveyance deeds dated 29
December 2007 and 29 February 2008 the petitioner entered into
the shoes of the the original owners and the promoter-respondent
No.2.
i) On 1 April 2011, the respondent No.1 made an
application dated 28 March 2011 to respondent No.4 seeking a
deemed conveyance of the right, title and interest of respondent
No.2 in the land and the building standing on the said property. In
support of its application for deemed conveyance the respondent
No.1 relied upon various documents including the agreement for
sale to the individual flat purchasers under the MOFA.
k) In the proceeding before respondent No.4, the
petitioner intervened in its own capacity and also as a power of
attorney holder of respondent No.2. During the course of the
proceeding respondent No.4 directed respondent No.3 also be
made a party to the proceedings before him.
l) After hearing all the interested parties, respondent
No.4 by an order dated 26 March 2012 held that under Section
11(3) of MOFA, respondent No.1 and 3 are entitled to unilateral
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deemed conveyance in their favour of land. However, in the
absence of demarcation of the land by the petitioner and its
predecessor respondent No.2 being conveyed to Respondent Nos.1
and 3, the same was distributed between them on the basis of FSI
consumed by each of them. The respondent No.4 held that the FSI
permitted for both the buildings at the relevant time was one and
the FSI consumed for building of respondent No.1 was 0.81 and
for building of respondent No.3 was 0.80. Therefore, the entire
land of 4568.70 sq. meters was used by respective societies in
proportion to the FSI consumed by them. This was because the
owner of the chawl was owner of the super structure only not
entitled to ownership of land besides the land on which the
structure was built. The distribution as made by respondent No.4
was as under:-
(a) FSI of 2426.12 sq. meters used for Shree Saraswati
Apartment i. e. respondent No.1 Society.
(b) FSI of 705.39 sq. meters used for Saraswati Co-op.
Housing Society i. e. respondent No.3 society.
(c) Entire land of 4568.70 sq. meters is distributed in the
ratio of 2426.12: 705.39 sq. meters between the two societies i.e.
respondent Nos. 1 and 3.
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(d) The entitlement to land of 1029.13 sq. meters to
respondent No.3 and 3539.58 sq. meters to Respondent No.1
(e) Out of the above, 415.76 sq, meters to be given as
lease to the petitioner herein ( who was intervener before
respondent No.4) on which the chawls stands.
5) In the context of the above facts, Mr. Dhakephalkar,
Senior Counsel appearing on behalf of the petitioner submits that
the order dated 26 March 2012 of respondent No.4 is
unsustainable in law on the following grounds:-
a) Respondent No.4 under MOFA is entitled to allow an
application for deemed conveyance under Section 11 of the MOFA
only in accordance with the agreement executed by the promoter
with the individual buyer of flats under Section 4 of the MOFA.
Consequently, the power of respondent No.4 to grant certificate of
deemed conveyance is restricted to what has been agreed to be
conveyed in the sale agreement under Section 4 of the MOFA. In
support of the aforesaid submissions that excess land has been
allowed, attention is drawn to Clause 16 of the agreement entered
into by the promoter-respondent No.2 with individual flat
purchasers in respect of sale of flats situated in buildings of
respondent No. 1 and 3.
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b) Respondent No.4 is obliged to act strictly in
accordance with the mandate of Section 11 of MOFA. It is not
open to respondent No.4 to distribute the land between the
parties by importing the concept of FSI which each of the parties
is entitled to on the basis of construction done and then determine
the extent of the said property to be conveyed to each of the
interested parties.
c) The competent authority while granting deemed
conveyance of the said property ought to have provided that the
benefit of FSI even of the land conveyed to respondent Nos. 1 and
3 continue to belong to the petitioner (successors to original
owners and respondent No.2).
d) The application made by respondent No.1 to the
respondent No.4 is not maintainable as two buildings had been
constructed on the said property and therefore, the application for
deemed conveyance could only be made by a federal society
consisting of respondent No.1 and 3. Thus the application for
deemed conveyance ought to have been returned by respondent
No.4 to respondent No.1.
e) The impugned order while granting deemed
conveyance ought to have directed respondent No.1 and
respondent No.3 Societies to execute a lease in respect of the
chawl and surrounding land aggregating to 1300 sq. yards in favor
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of the petitioner.
6) As against the above, Mr. Sanjay Jain, learned Counsel
appearing on behalf of respondent No.1 and Mr. Saluja, learned
A.G.P. appearing on behalf of respondent Nos. 4 and 5 in support
of the impugned order submit as under:-
a) The impugned order of respondent No.4 is in
accordance with Section 11 of the MOFA and the distribution of
the said property between the respondent No.1 and respondent
No.3 has been done in accordance with the agreement executed
under Section 4 of the MOFA. The remaining portion of the said
property after the above distribution vests in the petitioner.
b) The reliance by the petitioner upon Clause 16 of the
agreement for sale entered into by the petitioner with individual
flat purchasers in both the buildings is misconceived .This is
because the basis of clause 16 in the agreement dated 12
November 1980 is the agreement with the original owners entered
by respondent No.2. This agreement dated 12 November 1980 has
been modified by subsequent agreements. In fact, the original
owners had while conveying the said property by deed of
conveyance dated 19 December 1986 to respondent No.2 has
specifically provided that the right of the original owner in the
agreement dated 12 November 1980 stands modified by
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subsequent agreement and the entire said property save and
except the existing chawl was conveyed in favor of respondent
No.2 i.e. petitioner's predecessor.
c) The said property had to be distributed amongst the
various buildings constructed and flats therein sold by respondent
No.2. The said property had to be distributed amongst the three
structures thereon i.e. building of respondent No.1, building of
respondent No.3 and the existing chawl belonging to the
petitioner.
c) The application by respondent No.1 to respondent
No.4 is not premature. This is for the reason that two societies
cannot together make a federal society as the same require a
minimum of five societies on the said property.
In view of the above, it was submitted that the
impugned order of respondent No.4 dated 26 March 2012 calls
for no interference.
7) Before considering the rival submissions it would be
appropriate to reproduce Section-11 of the MOFA which reads as
under:-
"[(1) A promoter shall take all necessary
steps to complete his title and convey to the
organization of persons, who take flats, which is
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registered either as a co-operative society or as a
company as aforesaid, or to an association of flat
takers [or apartment 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 also deliver all
documents of title relating to the property which
may be in his possession or power.
(2) It shall be, the duty of the promoter to
file with the Competent Authority, within the
prescribed period, a copy of the conveyance
executed by him under sub section (1).
(3) If the promoter fails to execute the
conveyance in favour of the co-operative society
formed under Section-10, or, as the case may be,
the company or the association of apartment
owners, as provided by sub section (1), within the
prescribed period, the members of such co-
operative society or, as the case may be, the
company or the association of apartment owners
may, make an application, in writing, to the
concerned Competent Authority accompanied by
the true copies of the registered agreements for
sale, executed with the promoter by each
individual member of the society or the company
or the association, who have purchased the flats
and all other relevant documents (including the
occupation-certificate, if any), for issuing a
certificate that such society, or as the case may be,
company or association, is entitled to have an
unilateral deemed conveyance, executed in their
favour and to have it registered.
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(4) The Competent Authority, on
receiving such application, within reasonable time
and in any case not later than six months, after
making such enquiry as deemed necessary and
after verifying the authenticity of the documents
submitted and after giving the promoter a
reasonable opportunity of being heard, on being
satisfied that it is a fit case for issuing such
certificate, shall issue a certificate to the Sub
Registrar or any other appropriate Registration
Officer under the Registration Act, 1908,
certifying that it is a fit case for enforcing
unilateral execution of conveyance deed
conveying the right, title and interest of the
promoter in the land and building in favour of the
applicant, as deemed conveyance.
(5) On submission by such society or as
the case may be, the company or the association
of apartment owners, to the Sub Registrar or the
concerned appropriate Registration Officer
appointed under the Registration Act,1908, the
certificate issued by the Competent Authority
along with the unilateral instrument of
conveyance, the Sub Registrar or the concerned
appropriate Registration Officer shall,
notwithstanding anything contained in the
Registration Act, 1908, issue summons to the
promoter to show cause why such unilateral
instrument should not be registered as deemed
conveyance and after giving the promoter and the
applicants a reasonable opportunity of being
heard,may, on being satisfied that it was a fit case
for unilateral conveyance, register that
instrument as deemed conveyance.]"
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8) We have considered the submissions. The petitioner's
grievance primarily is that the Competent Authority could not have
by the impugned order under Section 11(3) of MOFA directed a
deemed conveyance in excess of the terms of the agreement
executed by the purchasers of flats in buildings of respondent Nos.
1 and 3 with respondent No.2 under Section 4 of MOFA. It is the
petitioner's case that under Clause 16 of the agreement under
Section 4 of the MOFA entered into between respondent Nos. 2
and the individual flat purchasers in buildings of respondent Nos.
1 and 3 had agreed that in terms thereof that the original owner
had in terms of the agreement dated 12 November 1980 continued
to be the owner of the chawls on the said property. Further, it was
also agreed that simultaneously with the execution of the
conveyance of the said property in favour of the Co-operative
society a lease of 1300 sq. yards of the said property would be
given to the original owner (who is now succeeded by the
petitioner). Therefore, the deemed conveyance should have been
only of the said property to respondent Nos.1 and 3 societies after
excluding the area covered by chawls and 1300 sq. mtrs. of the
said property. For a proper appreciation of the controversy the
clause 16 of the agreement entered into by respondent No.2 with
individual flat purchaser under Section 4 of MOFA is reproduced
as under:-
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"The original landlords Smt. Vijaylaxmi D.
Damodar H.U.F. have by the said agreement dated
12th November 1980 agreed to sell their said entire
property except one chawl of certain rooms occupied
by tenants which chawl agreed to be retained by the
said landlords as mentioned in the said agreement.
It is agreed by and between the vendors and the
purchaser that in respect of the chawl in the
property described in the first schedule hereunder
written which is occupied by monthly tenants and
the land underneath the said chawl and open space
surrounding the said chawl aggregating in all to
approx. 1300 sq. yards will be retained by the
vendors or the original landlords Smt. Vijaylaxmi D.
Damodar (HUF) and the said tenants will continue
to be the tenants of vendors or the original owners
notwithstanding the execution of the conveyance of
the property described in the first schedule
hereunder written in favour of a Co-operative
Society, Limited Company or other incorporated
body or association of flat, shop and garage
purchasers in the new Multi Storeyed building
proposed to be constructed by the vendors. It is
agreed that simultaneously with the vendors
procuring execution of the conveyance of the lands
hereditaments and premises described in the first
schedule hereunder written from the said Smt.
Vijaylaxmi Dayaram Damodar (HUF) in favour of
such Co-operative Society, Limited Company or
incorporated body or association of flat/shop/garage
purchasers, such society, limited company or other
incorporated body or association shall execute in
favour of the vendors or in favour of such person or
persons as the vendors may direct a lease of the land
admeasuring approx. 1300sq.ft. together with the
said chawl shown in the plan annex hereto in
hatched lines for a period of 999 years at a nominal
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rent of Rupee one per annum if demanded. The said
Indenture of lease will inter alia contain a provision
enabling the Vendors or the said original landlords
to sell, assign, underiet, mortgage or part with
possession of the said leasehold premises which may
be demised either in parts of in while or in such
other manner as the vendors or original landlords
Smt. Vijaylaxmi D. Damodar (HUF) may deem fit
without the written permission of such society,
limited company or other incorporate body or
association and further the lease in whose favour
such lease is executed will be entitled to demolish
the said existing chawl to remove the tenants and to
reconstruct a building on the land as may be
permitted by the Bombay Municipal Corporation and
to let or re-let the same or any part thereof or to sell
flats or other portions on ownership basis and the
lessors will not take any objection whatsoever to the
same and the said Indenture of Lease will also
contain provision for a right of way from S.V.P. Road
to the said Chawls over the compulsory open spaces
to be kept open under the Municipal Rules and the
same will be used by the Vendors or the said original
landlords their successors, assigns, their servants,
agents, tenants, contractors and all persons
authorized by the Vendors or their successors of
assigns to go, pass and re-pass over the same at all
times during day and night either on foot, or with
or without vehicles of any natures and descriptions
and also with a right to lay thereunder drains, gutter,
water pipes electric cables, telephone cables and all
other service lines as the vendors may deem fit and
the said Deed of Lease will contain such other terms
and conditions as Mr. G. S. Manasawala, Advocate
may determine and the decision of the said Mr. G.S.
Manaswala will be final and binding on the vendors
and the said incorporated body Co-operative Society
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or Limited Company or association and will not be
called in question. The vendors shall be fully at
liberty to construct the new building as per plans
sanctioned or modified sanctioned plans to have the
new building either attached to or separate from the
said existing chawl".
9) As is evident from the above clause 16 of the
agreement the entire basis of the petitioner's case is that
agreement of sale dated 12 November 1980 inter alia provides for
retention of chawls and a right to acquire a lease of 1300 sq. yards
of the said property from the person to whom the said property
would be finally conveyed. We find that the agreement for sale
dated 12 November 1980 entered into by the original owners with
the promoters i.e. respondent No.2 herein (the predecessor of the
petitioner) specifically provided that the original owners have
agreed to sell the entire property save and except the constructed
chawl. In the agreement dated 12 November 1980, we do not
find any mention of any rights continuing in the original owners
in respect of 1300 sq. yards. Further the agreement also provides
that the FSI available in respect of the said property would be
utilized by the promoters i.e respondent No.2. The above
agreement dated 12 November 1980 also states that FSI available
in respect of the chawl would be made available to the original
owners by the promoter-respondent No.2 on payment of
consideration. Consequent to the above, buildings of respondent
Nos. 1 and 3 were constructed and the agreements under Section
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4 of the MOFA were executed with individual purchasers of the
flats.
10) This agreement dated 12 November 1980 had been
modified and altered with the result that while conveying the said
property under a conveyance dated 19 December 1986 by the
original owners in favour of respondent No.2-Promoter it was
specifically provided that the agreement dated 12 November 1980
has been modified and altered by subsequent agreement. This
conveyance dated 19 December 1986 nowhere mentions that the
Co-operative society/Institution/Association etc. formed by the
Promoters after getting the conveyance in its favour would execute
lease of 1300 sq. yards in favour of the original owners. It also
does not provide for any rights of the original owner in respect of
1300 sq. yards of the said property which is being conveyed to
respondent No.2 by conveyance dated 19 December 1986.
11) In view of the above there is no obligation on the part
of the Co-operative Society to whom the deemed conveyance is
being granted by respondent No.4 to convey 1300 sq. yards
around the chawls in favour of the original owners and/or its
successors i.e. the petitioner. It was in the aforesaid circumstances
the view of respondent No.4 that there was no obligation on
respondent Nos.1 and 3 to execute a lease in favour of the original
owners with regard to 1300 sq. yards of land surrounding the
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existing chawl on the said property is neither arbitrary and/or
perverse.
12) In the light of the above discussion the respondent
No.2 was under an obligation to convey the said property to
respondent Nos. 1 and 3 societies in accordance with the
agreement entered into with individual flat purchasers therein
under Section 4 of MOFA. However, as the respondent No.2 failed
to discharge its obligation, respondent No.1 was entitled to move
respondent No.4 under Section 11 of the MOFA for deemed
conveyance to enforce the obligation of the respondent No.2-
Promoter under MOFA to convey all rights, title and interest in
the land and building in accordance with the agreement executed
under Section 4 of MOFA. In the present facts, respondent No.2-
Promoter had executed identical agreements in respect of the flats
sold in the building of respondent No.1 and flats sold in the
building of respondent No.3. In fact while executing agreement for
sale with flat purchasers in respondent No.3 Society respondent
No.2 ought to have excluded an area from the said property
which would be conveyed along with building to respondent No.1
society. However, the respondent No.2 Promoter did not do the
same and undertook to convey to both respondent Nos. 1 and 3
Societies the said property admeasuring 4739.78 sq. mtrs. It was
in these circumstances that respondent No.4 adopted the FSI
distribution between the constructed properties existing on the
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said property so as to convey the said property to the claimants
thereof in a reasonable manner. This distribution between the
different claimants to the said property on the basis of FSI
consumed became necessary only because respondent No.2 while
entering into two agreements with the purchasers of premises in
Shree Saraswati Apartment i.e. respondent No.1 in 1982 and the
purchasers of premises in Saraswati Co-operative Housing Society
i.e. respondent No.3 in 1992 had not allocated the land to be
conveyed between the two buildings but had undertaken to convey
the said property to both of them. In this view of the matter, it is
not open to the petitioner (successor to respondent No.2-
Promoter) to take advantage of its own wrong and frustrate the
rights of buyers of the flats under Section 4 of MOFA. In these
circumstances, we find that the impugned order of respondent
No.4 is reasonable and in accordance with law. Therefore, the
impugned order calls for no interference on the above account.
13) The petitioner's next grievance is that the impugned
order of respondent No.4 has ignored the fact that benefit of FSI
was available to the petitioner having got into the shoes of the
original owners and respondent No.2. So far as the original
owners right to FSI is concerned, the agreement dated 11
November 1980 itself very clearly provides in clause 9 thereof that
the original owners save and except retaining the chawl on the
said property do not retain any FSI available in respect of the said
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property including the chawl and the right of FSI would be
available only if purchaser-respondent No.2 shall give it to the
original owner for consideration. The conveyance dated 19
December 1986 also conveyed to respondent No.2 the said
property with its all rights, liberties and appurtenances to the use
and benefit of respondent No.2. Therefore, even the rights in
respect of the FSI of the original owners are concerned the same
stands transferred to respondent No.2.
14) So far as the petitioner's acquisition of rights of
respondent No.2 are concerned, the same has been acquired under
conveyance dated 29 February 2008. However, the preamble to the
aforesaid conveyance dated 29 February 2008 very clearly states
that the rights being acquired by the petitioner under the aforesaid
conveyance is subject to right already created by the original
promoters in respect of the purchasers of the said flats under the
MOFA. Consequently when the building and the land on which the
buildings are constructed, it follows that the rights in the land and
the buildings including the FSI and all future advantages and/or
accrual of any further rights are also acquired by the two societies
to whom the land is being conveyed. The agreement entered into
by respondent No.2-promoter with the individual purchasers of the
flats in respondent Nos. 2 and 3-societies does not provide therein
that respondent No.2 promoters would continue to have rights in
respect of land even after the same is conveyed to Respondent
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Nos. 1 and 3 societies under the agreement with the buyers of the
flats therein under Section 4 of MOFA. In the above view of the
matter, it is not open to the petitioners to claim any
right/entitlement with regard to FSI attributable to the said
property. Therefore the above grievance of the petitioner is also
not sustainable.
15) The next grievance of the petitioner that the
application made by respondent No.1 for deemed conveyance
under Section 11 of the MOFA is premature inasmuch as the same
should have been made by federal society consisting of respondent
Nos. 1 and 3 collectively. This objection is misconceived in law.
The two societies viz. Respondent Nos.1 and 3 cannot together
form a federal society. This is so as a federal society would require
at the minimum not less than five members all of whom are in
turn themselves societies. This is so provided in Section-2(13) of
the Maharashtra Co-operative Societies Act,1960. In the present
case there are only two societies and both have been
independently formed. Consequently even if they come together
they cannot be classified as federal society. In any event, even if,
the deemed conveyance is made in favour of two societies
collectively, they would be entitled to aggregate 4568.70 sq. mtrs.
and the petitioner would continue to be entitled to balance of
415.76 sq. mtrs. of the said property. The deemed conveyance
being made either individually or collectively to the two societies
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does not in any manner cause any prejudice to the petitioner. It
must be pointed out that there is no grievance before us by either
respondent No.1 and/or respondent No.3 on that account. Thus,
we see no merits in this grievance of the petitioner.
16) In view of the above, we see no reason to entertain the
present petition. Accordingly, the petition is, dismissed with no
order as to costs.
CHIEF JUSTICE
M.S. SANKLECHA, J.
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