Pundalik Vishram Gurav And Anr vs State Of Maharashtra And Ors
2016 Latest Caselaw 6280 Bom

Sherla V.



                                                                             wp.6359.2015_90.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION




                                                                                         
                                     WRIT PETITION NO.6359 OF 2015

            Pundalik Vishram Gurav & ors.                        ... Petitioners




                                                                 
                  Vs.

            The State of Maharashtra & Ors.                      ... Respondents




                                                                
            Mr.A.A. Desai for the Petitioner
            Mr.S.H. Kankal, AGP, for Resp. State
            Mr.P.M. Khankar for for Respondent No.3




                                                    
                                           ig   CORAM: Mrs.MRIDULA BHATKAR, J.

DATE: OCTOBER 24, 2016

ORAL JUDGMENT:

1. Rule. By consent of the parties, Rule made returnable forthwith and

the petition is heard finally at the stage of admission itself.

2. This petition is directed against the order dated 25.3.2014 of the

competent authority, whereby the competent authority by invoking its

powers under section 11(3) of the Maharashtra Ownership Flats

(Regulation of Promotion of Construction, Sale, Management and

Transfer) Act, 1963 has unilaterally granted conveyance of his society. The

petitioner is a landlord, who has entered into an agreement with the

Developer i.e., Respondent No.4, who has constructed a building on the

plot admeasuring 885.3 sq.mtrs. The learned Counsel for the petitioner

has submitted that the order passed by the competent authority is illegal

wp.6359.2015_90.doc

and is to be set aside. He submitted that the two buildings are standing on

a plot out of which one building belongs to the society of the flat

purchasers and the other building is of the tenants who were occupying

the plot earlier. The two buildings are standing on undivided plot and it is

necessary to sub-divide the said plot. He submitted that the competent

authority without taking into account this important factor has passed

unilateral order of deemed conveyance, thereby causing injustice on the

petitioner, who owns the entire plot. He pointed out in the application filed

by the society that the society has claimed the conveyance of the entire

plot admeasuring 885.30 sq.mtrs and it is to be considered as the suit

premises. In its application, the society has demanded the conveyance of

the suit premises, which is obviously admeasuring 885.30 sqmtrs which is

in fact an incorrect statement. The learned Counsel relied on the

judgment in the case of Mazda Construction Company & Ors. vs.

Sultanabad Darshan CHS Ltd. & Ors.1 He submitted that it is incumbent

on the competent authority to make enquiry before issuing the certificate

under section 11(4) of the MOFA about to claim of the land of the parties.

He submitted that the competent authority has failed to enquire into this

issue when raised by the petitioner before it. The area which is occupied

by the building consisting of tenants and the society and the area of the

building of the soceitymay vary after conducting further enquiry because of

1 2013 (2) ALL MR 278

wp.6359.2015_90.doc

the order of the competent authority of deemed conveyance. This area is

fixed and sealed, which is illegal.

3. The learned Counsel for the respondent/State and Respondent

No.4 society supported the order passed by the competent authority. The

learned Counsel appearing for the society submitted that the society limits

its claim upto the area claimed for registration for deemed conveyance i.e.,

upto 730.69 sq.mtrs and not more.

4. Read the impugned order and the petition. The competent authority

has issued certificate under section 11(4) of the MOFA, wherein the area

of the deemed conveyance is specifically mentioned as 730.69 sq.mtrs

and is transferred in the name of Shree Sadan Cooperative Housing

Society Ltd. Thus, in view of this certificate, it cannot be said that the

competent authority has transferred or conveyed the entire area of the plot

i.e., 885.30 sq.mtrs. Thus, the competent authority has in fact left out the

area admeasuring 154.61 sq.mtrs for the building of the tenants.

5. Perused the judgment in the case of Mazda Construction Company

& Ors. (supra). In the said case, a learned Single Judge of this Court has

held that the competent authority cannot permit the parties to claim

something which is beyond their agreement with the Promoters or other

relevant documents. The spirit of this ratio laid down in Mazda

Construction Company & Ors. (supra), is that the society should not get

wp.6359.2015_90.doc

more area or less area but the exact due of the society is to be given to it

by the competent authority. In the present case, admittedly, the

agreement entered into by the flat purchasers and Respondent No.4 with

the Developer discloses the entire area of the plot i.e., 885.30 sq.mtrs.

However, the competent authority after considering the position of the

building occupied by the tenant and the building occupied by the flat

purchasers have arrived at a balanced and correct statement tha the area

which is to be conveyed is 730.69 sq.mtrs. Moreover, the learned Counsel

for the society has submitted before the Court that the society does not

claim any area more than 730.69 sq.trs as mentioned in the certificate

issued by the competent authority on 25.3.2014. Thus, I do not find any

illegality in the order passed by the competent authority under section 110

of the MOFA. If the petitioner is aggrieved by the said order and has some

issues in respect of the sub-division of the plot, then, he has recourse

before the civil Court, which he may take, if advised.

6. Rule is discharged accordingly.

(MRIDULA BHATKAR, J.)