Bombay High Court
Mahendra R Ranpara vs The Competent Authority And ... on 1 March, 2021
Bench: Makarand Subhash Karnik
39.wpst.93219-20.doc
Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION ST. NO.93219 OF 2020
Mahendra R. Ranpara
since deceased through L.Rs.
1(a) Neeta Ranpara & ors. .. Petitioners
vs.
The Competent Authority and District
Deputy Registrar & ors. .. Respondents
WITH
WRIT PETITION ST. NO. 94139 OF 2020
Sonakiran "B" Co-operative Housing Society Ltd. .. Petitioner
vs.
The Competent Authority and District
Deputy Registrar & ors. .. Respondents
------------------------
Mr. Gauraj Shah a/w Mr. Pratik Jain, Ms. Princee Vaishnav I/b.
Prime Legam for the Petitioners in WPST/93219/2020 and for the
Respondent No.18 in WPST/94139/2020.
Ms. Vishaki Bhatia for Respondent No.2 in both Petitions.
Mr. Suresh Sabrad for Petitioner in WPST/94139/2020 and for
Respondent No.18 in WPST/93219/2020.
Mr. S.L. Babar, AGP for the State in WPST/93219/2020.
Mrs. V.S. Nimbalkar, AGP for the State in WPST/94139/2020.
------------------------
CORAM : M.S.KARNIK, J.
DATE : MARCH 1, 2021
P.C.:-
Heard learned counsel for the parties.
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2. The order under challenge is passed by the Deputy
Registrar granting the unilateral conveyance in favour of
Respondent No.2-Society under Section 11(3) of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act 1963. It is the contention of
learned counsel for the Petitioners-owner developer that the
authority was not justifed in granting the unilateral conveyance
when on the earlier occasion on the very same set of documents
the application made by the Respondent No.2-Society came to be
rejected. Learned counsel pointed out that even in the earlier
application the Respondent No.2-Society had relied upon the very
same architect certifcate which is the subject matter of the
present application.
3. It is the further contention of learned counsel for the
Petitioners that the area in excess of what the Society is entitled
to has been granted to the Respondent No.2-Society by the
unilateral conveyance. According to the learned counsel this is
based on a incorrect application of the FSI calculations and the
set back area calculations.
4. So far as the frst contention is concerned it is seen from
the earlier order dated 11.10.2018 passed by the authority that
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the unilateral deemed conveyance application was rejected as
the same was fled without producing sufcient documentary
evidence to claim the area and the applicant was granted liberty
to fle afresh. This contention of learned counsel for the
Petitioners is therefore devoid of any merit. So far as the
contention that the area in excess to which the Petitioners-
Society is entitled to is granted is concerned, it is always open for
the Petitioners to institute appropriate civil suit to establish the
claim in view of the decision rendered by this Court in the case of
Mazda Construction Company & Others v/s Sultanabad
Darshan CHS Ltd. & Others1 and in the case of Angeline
Randolph Pareira & Ors. Vs. Suyog Industrial Estate
Premises Co-operative Society Ltd. & ors.2
5. This Court in the case of Angeline Randolph Pareira &
Ors. (supra) relying upon the decision in Mazda Construction
Company & Others (supra) has clarifed that it is not as if such
an order of deemed conveyance is passed that the Petitioners
have no remedy to question the act of the society on the
strength of such deemed conveyance. The Petitioner can still
bring a substantive suit on the title. It is held that all such
assertions and by pointing out the relevant documents and
1 2013 (2) ALL MR 278
2 2018 (6) ALL MR 729
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records so also by leading oral evidence can be substantiated by
the Petitioner in the substantive suit. In paragraph 19 and 20 it is
held thus :-
"19. It is held that in the writ jurisdiction and in the garb
of examining the legality and correctness so also validity
of deemed conveyance, Court cannot examine these
issues. Division Bench of this Court clarifed in the said
judgment that the order of deemed conveyance shall not
preclude or prevent the petitioner from fling a suit and
claiming therein appropriate reliefs. In my view, the
judgment delivered by the learned Single Judge of this
Court in the case of Mazda Construction Company &
Ors. (supra) and the judgment of this Court in the case
of M/s. Shree Chintamani Builders Vs. State of
Maharashtra & Ors. (supra) would squarely apply to
the facts of this case. I am respectfully bound by the said
judgment.
20. In this case also various contentions issues as
referred to aforesaid could not have been gone into in the
proceedings under Section 11 of the MOFA by the
competent authority. Merely because an order of deemed
conveyance is passed in favour of the respondent no.1and
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the certifcate of title is issued by the competent authority
under Section 11 of the MOFA in favour of the respondent
no.1, the petitioners are not precluded from seeking
adjudication of their alleged title in respect of the suit
property by fling of an appropriate civil suit. All such
contentions raised by the petitioners regarding
adjudication of title in the property in question can be
adjudicated upon in a substantive suit."
6. In this view of the matter it is made clear that if any civil
suit is fled by the petitioners for adjudication of title or the
disputed questions raised in this Petition 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 in favour of the
respondent No.2 in respect of the property in question.
7. I therefore pass the following order :-
ORDER
(1) The Petitioners would be at liberty to fle a
substantive suit for adjudication of title and the disputed
questions raised in this Petition in respect of the property
in question. The same can be decided independently
without being infuenced by the fact that an order of
39.wpst.93219-20.doc
deemed conveyance of the property in question is passed
by the competent authority under the provisions of
Section 11(3) of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act 1963.
(2) Considering that the interim order is in operation
since 28.09.2020 the same is continued for a further
period of four weeks from today.
(3) Subject to the above observations, the Writ Petition is
rejected.
8. All contentions are kept open.
9. In so far as Writ Petition No.94139 of 2020 is concerned the
Petitioner has fled the Petition challenging the very same order
as the Petitioners are aggrieved by the deprivation of their right
of way to the Society. For the above reasons even Writ Petition
No.94139 of 2020 is disposed of and on the same terms.
(M.S.KARNIK, J.)
Digitally
signed by
Diksha
Diksha Rane
Rane Date:
2021.03.01
19:26:55
+0530
