Smt. Girija Sundar Patil And Anr vs Chairman / Secretary, Raghunath ...
2022 Latest Caselaw 10199 Bom

                                                                               1-wpst-20742-2014.doc
    Sonali


                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION
         Digitally
         signed by
         SONALI
                                         WRIT PETITION (ST) NO. 20742 OF 2014
SONALI   MILIND
MILIND   PATIL
PATIL    Date:
         2022.10.06
         17:17:28
         +0530        Smt. Girija Sundar Patil & Ors.                    ...Petitioners
                           Versus
                      Chairman/Secretary, Raghunath Co-operative Housing
                      Society Ltd. & Anr.                                ...Respondents


                      Ms. Shalu Tanwar, i/b. Ms. Preeti Walimbe, for the Petitioners.

                      Mr. Nikhil Rajeshirke, i/b. Mr. V. S. Kapse, for the Respondent No.1.


                                                  CORAM : MADHAV J. JAMDAR, J.

DATED : 4th OCTOBER 2022

P.C. :

1. Heard Ms. Shalu Tanwar, learned counsel appearing for the

Petitioners and Mr. Nikhil Rajeshirke, learned counsel appearing for

the Respondent No.1.

2. None appears for Respondent No.2.

3. The Petitioners who are the owners of the plot in question seek

to challenge order dated 28th April 2014 passed by the Competent

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Authority and Deputy District Registrar, Cooperative Societies, Thane,

by which deemed conveyance was granted in favour of Respondent

No.1-society.

4. Ms. Tanwar, learned counsel for the Petitioners raised three

submissions before this Court. Her first submission is that as per the

development agreement dated 15th September 1987, the

consideration agreed was monetary as well as one flat admeasuring

409 sq.ft. built up area to be allotted to the owners. She submitted

that Respondent No.2 has failed to comply with the said requirement.

According to her, therefore, the construction of the society building is

illegal. Her second submission is that as per the agreement, the

developer was to construct ground + two floors, however, actually

ground + four floors are constructed and therefore, unauthorizedly

two floors are constructed. Her last submission is that the total plot

area of survey No.15, Hissa No.6/2 (old survey No.107 Hissa No.6

(p)) admeasures about 450 sq.mtrs. The development agreement is in

respect of 330 sq.mtrs. and inspite of that, developer has utilized FSI

of entire area and constructed on the entire area. She therefore,

submitted that the impugned order be quashed and set aside.

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5. Mr. Rajeshirke, learned counsel appearing for Respondent No.1

submitted that the deemed conveyance order is granted only with

respect to 330 sq.mtrs area and therefore, no illegality is committed.

He submitted that the impugned order refers to sanction plan as well

as permission granted by the then Dombivali Municipal Council. He

relied on the order dated 12th February 2021 passed by this Court in

case of M/s. Gia Construction and Developers vs. Mangesh Park Co-

operative Housing Society through Secretary & Ors .1 He pointed out

paragraphs 4 and 6 of the said order. He therefore, submitted that no

interference is called for.

6. It is settled legal position that the proceedings under section 11

of the Maharashtra Ownership of Flats (Regulation of the Promotion,

Construction, Sale, Management and Transfer) Act, 1963 (hereinafter

referred to as the "MOFA") are filed in view of the default committed

by the promoters to execute deed of conveyance in favour of the

society by complying with the provisions of MOFA. The definition of

promoters as contemplated under section 2 (c) Of the MOFA

contemplates that "promoter" means a person who constructs or

1 Civil Writ Petition No.576 of 2021

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causes to be constructed a block or building or flats for the purpose of

selling some or all of them to other persons, or to a company, co-

operative society or other association of persons, and includes his

assignees; and where the person who builds and the person who sells

are different persons, the term includes both. Thus, in the present

case, the Petitioners who are the owners of the plot in question as

well as Respondent No.2 who is the developer are the promoters.

7. It is admitted position that the agreement of sale or

development agreement was executed between the Petitioners and

the Respondent No.2 on 15 th September 1987. Thus, the Petitioners

are squarely covered by the definition of promoters as contemplated

under section 2 (c) of the MOFA. Therefore, apart from the liability of

Respondent No.2, it is also statutory responsibility of the Petitioners

to execute the conveyance within the time limit granted by MOFA.

This Court in various judgments including in the judgment of Mazda

Construction Company & Ors. vs. Sultanabad Darshan CHS Ltd. &

Ors.2, Angeline Randolph Pereira & Ors. vs. Suyog Industrial Estate

Premises Co-operative Society Ltd. & Ors. 3 have held that order 2 2013 (2) ALL MR 278 3 2018(3) AIR Bom. R 825

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passed by the competent authority of deemed conveyance does not

conclude the issue of right, title and interest in respect of such

property conclusively in favour of the society. Such an order of

deemed conveyance is always subject to appropriate civil proceedings

before the Civil Court. In Tirupati Shopping Centre Premises Co-op.

Society Limited vs. Shabayesha Construction Company Private

Limited 4this Court has held that there is no provision under the

MOFA by which, it is contemplated that order passed by the

competent authority under section 11 of the MOFA is final in all

respect including on the issue of title in the property and bars the

Civil Court from deciding the issue of tittle independently.

8. It is necessary to consider the submissions of Ms. Tanwar,

learned counsel appearing for the Petitioners in the light of above

settled legal position.

9. The first submission is that the developer has not paid

monetary consideration and has not handed over one flat in terms of

agreement dated 15th September 1987. The said dispute is purely

4 Civil Writ Petition No.9105 of 2021

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contractual dispute between Petitioners i.e. owners of the plot and

Respondent No.2, i.e. developer. The said dispute in no manner will

affect right, title and interest of the flat purchasers and society.

10. As far as the contention that the agreement contemplates only

construction of ground + two floors and developer has constructed

ground +four floors are the disputes which can be settled in the Civil

proceeding filed before the appropriate Civil Court.

11. The third submission of the learned counsel for the Petitioners

is that total plot is of 450 sq. mtrs. and development rights only of

330 sq.mtrs. has been granted. It is significant to note that the

competent authority was cautious about the said submission and

extensively dealt with the same in the impugned order and in fact,

granted deemed conveyance only with respect to 330 sq.mtrs. of plot

area. Thus, there is no infirmity in the impugned order of granting

Deemed Conveyance.

12. The Writ Petition is dismissed with no order as to costs.

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13. However, it is clarified that deemed conveyance granted by the

impugned order is subject to the decision of Civil Court, if any civil

suit is filed by the Petitioners.

MADHAV J. JAMDAR, J.