Arunkumar H. Shah Huf Through Kart ... vs Avon Arcade Premises ...
2021 Latest Caselaw 3574 Bom

                                                     18. wpst 95334-2020 - FINAL.doc

DDR
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                    WRIT PETITION ST.NO. 95334 OF 2020

      ARUNKUMAR H. SHAH HUF THROUGH
      KARTA MR. GAURANG A. SHAH                               .. PETITIONER
           vs.
      AVON ARCADE PREMISES CO-OPERATIVE
      SOCIETY LIMITED & ORS.                                  .. RESPONDENTS
                           ------------------------
      Mr. Nishant Sashidharan a/w. Nakul Jain & Ms. Gauri Joshi i/b.
      Ganesh & Co. for the petitioner.
      Mr. Ashish Kamat i/b. Abhijeet Marathe a/w. Ms. Nidhi Ram for
      respondent No.1.
      Mr. S.D. Rayrikar, AGP for State.
      Mr. Sheroy M. Bodhanwalla a/w. Sakshi Sharma i/b. M.S.
      Bodhanwalla & Co. Advocates and Solicitors for respondent
      Nos.2(a) to 2(d) and 3(a) to 3(d).
                                 ------------------------

                                CORAM           : M.S.KARNIK, J.

                                DATE            :   FEBRUARY 25, 2021
      P.C.:-

Heard learned counsel for the petitioner.

2. The Petitioner challenges an order of deemed conveyance

passed by the competent authority under the provisions of the

The Maharashtra Ownership of Flats (Regulation of the

Promotion, Construction, Sale, Management and Transfer) Act,

1963 (hereinafter referred to as "the MOFA Act" for short).

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3. In brief it is the case of the petitioner that the land

admeasuring 2814.38 sq.mts. was owned by the partnership

frm. Pursuant to the dissolution of the partnership frm an area

of 903.06 sq.mts came to the share of the petitioner whereas an

area of 1911.32 sq.mts came to the share of the respondent No.4

frm.

4. Learned counsel for the petitioner invited my attention to

the agreement which is at page 50. He placed emphasis on

Clause 1 read with Clause 36 of the said agreement. In his

submission, the competent authority by granting deemed

conveyance has clearly travelled beyond the said agreement. He

submits that the deemed conveyance can be granted only as

regards the portion forming the part and parcel of the fat

purchase agreement or the sanctioned plan.

5. Relying on the Clauses 1, 36 and other Clauses of the

agreement, learned counsel for the petitioner submits that even

in the said agreement it has been clearly mentioned that the

developer owned the land admeasuring 1911.32 with structures

thereon. Clause 36 on which much emphasis is placed by the

learned counsel reads thus :

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"36. After the said Building and the Premises to be constructed by the Developers and the several structures to be constructed by the Developers on the said Property are completed and ready for occupation and after the Society as aforesaid is registered and only after all the premises in the said Building and the additional construction in the said Building that may be constructed on the said Property are sold and disposed of by the Developers and after the Developers shall have received all dues payable to them under the terms of the Agreements with the Purchasers in the said Building and/or the Developer shall execute a Conveyance in respect of the said Property in favour of such Co-operative Society subject to the said Deed of Lease dated 16th day of July, 1991 in respect of Arun's property in favour of Arun Hiralal Shah H.U.F. and/or his nominee or nominees as aforesaid. Until the execution of the Conveyance the possession of the said Property in the said Building and the Premises thereon shall be deemed to be of the Developers and the Purchasers who shall have been given possession of the premises sold to him/her/them shall be merely occupants thereof."

6. It is thus the contention of learned counsel for the

petitioner that the competent authority has clearly transgressed

beyond what is provided for in the fat purchase agreement as

well as the sanctioned plan under which only the area of 1911.32

sq.mts. was available for the purpose of development.

7. Learned counsel for the petitioner in support of his

submissions relied upon the decision of this Court in the case of

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M/s. Sheth Enterprises & anr. vs. District Deputy Registrar

(2) Mumbai & ors.1. Relying on paragraph 6 of the said decision

learned counsel submits that this Court has clearly held that the

entitlement of the society of the fat purchasers to the deemed

conveyance would be in terms of the agreement entered into

between the parties i.e. the fat purchasers and the developer. He

contends that this would mean that the competent authority and

the District Deputy Registrar could not have travelled beyond the

fat purchase agreement and the sanctioned plan.

8. He also relied upon the decision of this Court in the case of

Tushar Jivram Chauhan and another vs. State of

Maharashtra and others2. Relying on paragraphs 18 and 19

learned counsel submits that the competent authority under

MOFA has limited scope and power to deal with and decide the

application of deemed conveyance and/or unilateral conveyance.

This Court considering the scheme of MOFA and specifcally

Sections 10 and 11 has held that all the parties are bound by the

agreement or contract before applying for conveyance and/or

deemed conveyance and/or unilateral conveyance of the agreed

property. Thus relying on these judgments learned counsel

submits that the competent authority was clearly in error in

1 2016 SCC OnLine Bom 4901 2 2015(4) Mh.L.J. 867.

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granting deemed conveyance in respect of the portion of land

admeasuring 903.06 which belongs to the petitioner.

9. Learned counsel for the respondents on the other hand has

relied upon the Clause 36 of the agreement and the fndings of

the competent authority. He argued in support of the order

passed by the competent authority. He further submitted that

considering the nature of the dispute the remedy for the

petitioner is to fle a suit before the Court of competent

jurisdiction.

10. Heard learned counsel.

11. Perusal of the Clause 36 reveals that the developer shall

execute a Conveyance in respect of the said Property in favour of

such Co-operative Society subject to the said Deed of Lease

dated 16th day of July, 1991 in respect of Arun's property

(petitioner's property) in favour of Arun Hiralal Shah H.U.F. and/or

his nominee or nominees as aforesaid. Even the fndings of the

competent authority in paragraph 5 reveals that the competent

authority has referred to the deed of dissolution whereby the said

property or part thereof was transferred contains a provision that

Mr. Lalbhai H. Shah shall make conveyance of the entire property

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in the name of Co-operative Society subject to Lease Rights of

Mr. Arunkumar H. Shah in respect of the portion which was

allotted to Mr. Arunkumar H. Shah.

12. Learned counsel for the petitioner vehemently urged that

"the said property" would mean the property described in the

development agreement viz. 1911.32. sq. mts. There is dispute

as regards what the term "said property" means for according to

learned counsel for the respondent No.1, the said property

means entire area including 903.06 sq.mts. subject to the lease

rights of the petitioner.

13. Considering the nature of the dispute, in my opinion, it is

not possible for me to decide the legality and correctness so also

validity of deemed conveyance in this Petition. It has been held in

the case of Mazda Construction Company & Others Vs.

Sultanabad Darshan CHS Ltd. & Others 3 that order granting

deemed conveyance will not conclude the issue of right, title and

interest in the immovable property. The deemed conveyance

does not preclude or prevent the petitioner from fling a suit and

claiming therein appropriate reliefs.

3 2013 (2) ALL MR 278

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14. This Court in the case of Angeline Randolph Pareira &

Ors. Vs. Suyog Industrial Estate Premises Co-operative

Society Ltd. & ors.4 has observed in paragraph 23 as under :-

"23. It is made clear that if any civil suit is fled by the petitioners for adjudication of title in respect of the property in question, the said suit can be independently decided without being infuenced by the fact that an order of deemed conveyance passed by the competent authority or that the certifcate of title of the property is issued by the competent authority in favour of the respondent no.1 in respect of the property in question."

15. In view of the law laid down by this Court in the case of

Mazda Construction Company & Others and Angeline

Randolph Pareira & Ors. (supra), I decline to interfere with the

order passed by the competent authority. I therefore pass the

following order :

ORDER

1. The petitioner would be at liberty to fle a substantive

suit for adjudication of right, title and interest in respect of

the property in question. The same can be decided

independently without being infuenced by the fact that an

order of deemed conveyance of the property in question is

passed by the competent authority and the certifcate of

title of the property is issued by the competent authority

under Section 11(5) of the MOFA.

4 2018 (6) ALL MR 729

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16. All contentions in this regard are kept open.

17. The Petition is rejected.

18. Learned counsel for the petitioner requested for

continuation of the interim order which is in operation. Learned

counsel for the respondent No.1 - society opposed the request.

Digitally signed by Diksha Diksha

19. In the interest of justice, I am inclined to continue the Rane Rane Date:

2021.02.26 18:34:44 +0530

interim order which is granted earlier for a period of four weeks

from today.

(M.S.KARNIK, J.)