Bombay High Court
Smt. Geeta Bhaskar Pendse vs Bramha Chaitanya Co-Operative ... on 11 April, 2016
Bench: R.M. Savant
wp-8493.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8493 OF 2014
Smt. Geeta Bhaskar Pendse ]
70 years Occ : Nil ]
Residing at 101 ]
Shri Bramha Chaitanya Co-operative ]
Housing Society Limited ]
Plot No.38, Bramhan Society, Naupada ]
Thane 400 602 ]..... Petitioner.
versus
1]
Housing Society Limited
Bramha Chaitanya Co-operative ]
]
Plot No.38, Bramhan Society ]
Naupada Thane 400 062 ]
Through Chairman/Secretary ]
]
2] Bramhan Co-operative Housing ]
Society Limited, ]
Naupada, Thane ]
Through Chairman/Secretary, ]
]
3] M/s. Shrayas Enterprises, ]
G/5, Ishan Ram Maruti Road, ]
Sant Ram Maruti Maharaj Chowk ]
Naupada, Thane ]
]
4] Competent Authority and ]
District Deputy Registrar ]
Co-operative Societies, Thane ]..... Respondents.
Mr. Kishor S Patil for the Petitioner.
Mr. R S Tanna for the Respondent No.1.
Mr. S M Oak i/by Mr. Sagar A Joshi for the Respondent No.2.
Mr. Rajesh S Datar for the Respondent No.3.
Mr. S D Rayrikar, AGP, for the Respondent No.4.
CORAM : R. M. SAVANT, J.
DATE : 11th April 2016
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P.C.
1 Rule, with the consent of the learned counsel for the parties made
returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the order
dated 23/04/2014 passed by the Competent Authority and Deputy Registrar,
Co-operative Societies, Thane by which order the application filed by the
Respondent No.1 Society for grant of unilateral deemed conveyance came to be
allowed and the unilateral deemed conveyance came to be granted in respect
of the property mentioned in the Certificate dated 23/04/2014 issued by the
Competent Authority and Deputy Registrar, Co-operative Societies, Thane on
the said date.
3 The Petitioner herein is the lessee of the plot of land, being Plot
No.38 which is situated within the Respondent No.2 Society. The Respondent
No.2 Society is a plot holders society wherein the plots have been allotted on
long term lease basis to the holders thereof. It seems that the Petitioner's father
in law was one such allottee of the said Plot No.38 in respect of which a lease
was granted for 999 years by the Respondent No.2 Society. After the demise of
the father in law of the Petitioner, it seems that the husband of the Petitioner
entered into a Development Agreement with the Respondent No.3 herein to
develop the said plot of land in question. The Respondent No.3 accordingly
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has constructed a building having 5 storeys and comprising of 8 flats. The flat
purchasers have constituted themselves into the Respondent No.1 Society. In
terms of the agreements entered into with the flat purchasers and the
covenants therein the Respondent No.1 invoked the provisions of the
Maharashtra Ownership of Flats Act, 1963 (for short "the said Act") and
especially Section 11 thereof to seek deemed conveyance of the said plot of
land in view of the fact that there was reluctance on the part of the Petitioner
herein to convey the said plot of land in favour of the Respondent No.1 Society.
At this stage, it is required to be noted that in the said Application for deemed
conveyance the aforesaid facts have been mentioned viz. that the husband of
the Petitioner herein had only lease hold rights in respect of the plot of land.
4 The said application for deemed conveyance was opposed to on
behalf of the Petitioner as well as the Respondent No.2. The opposition was on
the ground that the application for deemed conveyance could not have been
filed in view of the fact that the husband of the Petitioner who entered into
development agreement had only lease hold rights in the plot of land in
question.
5 The Competent Authority and Deputy Registrar, Co-operative
Societies, Thane considered the said application and by the impugned order
dated 23/04/2014 has allowed the said application. Though the Competent
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Authority in the body of the order has referred to the factum of the Petitioner
and her husband having only lease hold rights in the plot of land in question,
however, in the operative part, the Competent Authority has directed that the
conveyance be executed and that the Respondent No.1 Society should get the
draft of the conveyance deed adjudicated by the Superintendent of Stamps to
facilitate the execution of the conveyance deed. As indicated above, it is the
said order dated 23/04/2014 passed by the Competent Authority and Deputy
Registrar, Co-operative Societies, Thane which is taken exception to by way of
the above Writ Petition.
6 The principal contention urged on behalf of the Petitioner is that
in terms of the law laid down by this Court the applicant under Section 11 of
the said Act would be only entitled to such rights as the promoter or developer
had in the property and that the applicant cannot be conferred better rights
than the promoter/developer. A useful reference can be made to the judgment
of a learned Single Judge of this Court reported in 2013(2) ALL MR 278 in the
matter of Mazda Construction Company & ors. v/s. Sultanabad Darshan
CHS Ltd. and ors.
7 In my view, though the order passed by the Competent Authority
and Deputy Registrar, Co-operative Societies, Thane cannot be found fault with
in so far as entertaining the said application under Section 11 of the said Act is
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concerned. In my view, the Competent Authority has erred in granting
conveyance of the property in question when all that the promoter/developer
had in the property was only lease hold rights. In my view, therefore, the order
dated 23/04/2014 passed by the Competent Authority and Deputy Registrar,
Co-operative Societies, Thane would have to be modified to the extent that the
Respondent No.1 Society herein would be entitled to only the lease hold rights
which the original owner i.e. the father in law of the Petitioner had in the plot
of land in question. The order dated 23/04/2014 passed by the Competent
Authority as well as the Certificate issued on the same day would stand
modified accordingly. Needless to state that the grant of lease would be
without prejudice to the rights and contentions of the Respondent No.2 Society
which is the parent society. In the light of the above, the Respondent No.1
Society would therefore be liable to pay stamp duty in respect of the lease for
the remaining period that it would be entitled to under the impugned order
passed by the Competent Authority and Deputy Registrar, Co-operative
Societies, Thane. The above Writ Petition is allowed to the aforesaid extent.
Rule is accordingly made absolute with parties to bear their respective costs of
the Petition.
[R.M.SAVANT, J]
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