Bombay High Court
M/S. Riddhi Siddhi Skyline (Llp) ... vs The Chairman Thane Sundaram Co-Op ... on 5 June, 2023
Bench: N. J. Jamadar
2023:BHC-AS:14628
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Sayali Upasani
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11547 OF 2022
WITH
INTERIM APPLICATION NO. 18641 OF 2022
IN
WRIT PETITION NO.11547 OF 2022
1. M/s. Riddhi Siddhi Skyline (LLP)
Through Abhishek Parmar,
Carrying on business from 201,
Arihant Building, Agiary Lane,
Tembhi Naka, Thane (W)-400 601 .... PETITIONER.
VERSUS
1. The Chairman/Secretary
Thane Sundaram Cooperative
Housing Society Ltd Having address
at Dharamveer Marg, Panchpakhadi,
Thane-400 601
2. M/s. Bhojani Constructions 2,
Shiv Darshan, Sarojani Road,
Santacruz (W), Mumbai-400 054.
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3. Saraswati Mohanlal Parmar
Age: Adult, Occ.-Not known
4. Dilip Mohanlal Parmar
Age: Adult, Occ.-Not known
5. Suresh Mohanlal Parmar
Age: Adult, Occ.-Not known
6. Kamla Babulal Parmar
Age: Adult, Occ.-Not known
7. Manisha Babulal Parmar
Age: Minor, Occ.-Student
Minor, through natural guardian
and mother respondent No. 6 above.
8. Anju Babulal Parmar
Age: Minor, Occ.-Student
Minor, through natural guardian
and mother respondent No. 6 above.
9. Yashwant Savalaram Gharat
Age: Adult, Occ.-Not known
10. Kokila Navnithlal Shah
Age: Adult, Occ.-Not known
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Respondent Nos. 3 to 10 residing at
Pakeeza Market, Maulana Shaukat
Ali Road, Grant Road,
Mumbai- 400 009
11. Competent Authority and
District Deputy Registrar,
Co-operative Societies, Thane
having his office at Gaondevi
Market Building, 1st floor, Near
Gaondevi Maidan, Gokhale Road,
Thane, (W)- 400 602 ....RESPONDENTS
Mr. Rajesh Datar a/w Dhruti R. Datar, for Petitioner.
Mr. Sandesh D. Patil and Chintan Y. Shah i/b Prithviraj S.
Gole, for Respondent No. 1- Thane Sundaram CHSL.
Ms. Madhubala Kajale- B Panel Counsel for Respondent
No.11.
Mr. Mandar Limaye, for Respondent No. 12.
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 28th APRIL, 2023
PRONOUNCED ON:- 5th JUNE, 2023
29-WP-11547-22+.DOC
JUDGMENT:-
1) Rule. Rule made returnable forthwith and with the
consent of the learned Counsel for the parties heard finally.
2) This Petition takes exception to an order dated 25 th April,
2022, passed by the Deputy Registrar Co-operative Societies
and the Competent Authority on an application, being
application No.42 of 2020, thereby declaring that the
respondent No. 1- Society is entitled to have unilateral deemed
conveyance executed and registered in its favour under Section
11(3) of the Maharashtra Ownership Flats (Regulation of the
promotion of construction, sale, management and transfer) Act,
1963 ("MOFA 1963").
3) Background facts can be stated in brief:
(a) Mr. R.S. Shah and Shri. J.D. Desai were the owners of plots
of land bearing Survey Nos.479/7, 344/12, 344/6 and 479/5
corresponding City Survey Nos.944, 1061, 948 and 947 and
original plot Nos. 320, 321, 325, and 318 situated at
Panchpakhadi, Thane. In the town planning scheme, the plots
were demarcated and given final plot Nos. 292, 298 and 305 and
delivered to the holders of the original plots by Thane Municipal
Corporation.
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(b) Respondent No. 1 is a Co-operative Housing Society,
registered under the provisions of the Maharashtra Co-operative
Societies Act, 1960 ("the Act, 1960"). It is the claim of the
respondent No. 1 that Mr. R.S. Shah had sold the plot of land
bearing Survey No. 479, Hissa No. 7, (Original Plot No.320, Final
Plot No.305 Part) to Mr. Champaklal Somalal Desai, who, in
turn, had sold an area admeasuring 556 sq. Mtrs out of the
total area of 1152 Sq. Mtrs, from Final Plot No.305 (Part) to one
Smt. Kokila Navnitlal Shah, the predecessor in title of M/s
Bhojani Construction- respondent No. 2. In turn, the
respondent No. 2 had granted development rights in respect of
the said land i.e. final Plot Nos.305 (part) and 306 in favour of
the respondent No. 1 and, thereupon, the respondent No. 1-
Society constructed a building with requisite sanction and
approvals of the Competent Authority. Occupation Certificate
came to be granted on 28th May, 1986. Eventually, respondent
No. 1- Society was formed and registration certificate came to be
issued on 11th September 1986.
(c) On 11th May, 2016, Thane Municipal Corporation
addressed a notice to respondent No. 1 to stop the use of plot
No. 305. Since there was no response to the said notice, on 11 th
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November, 2017, Thane Municipal Corporation apprised the
respondent No. 1 that plot No. 305 would be demarcated on 17 th
January, 2017, and possession thereof would be handed over to
the final plot holder, as per scheme. Respondent No. 1 instituted
a suit being Regular Civil Suit No. 34 of 2017 in the Civil Court
at Thane, seeking declaration that the said notice dated 11 th
January, 2017, issued by Thane Municipal Corporation was
illegal and also to restrain Thane Municipal Corporation from
acting upon the said notice.
(d) In the meanwhile, the petitioner, a limited liability
partnership firm, claimed to have purchased land admeasuring
11529 Sq. Mtrs Final Plot No. 305 from the successors in the
interest of Mr. R.S. Shah under a sale-deed dated 5 th May, 2018,
for a valuable consideration of Rs.4,15,00,000/-, on 'as is where
is basis'.
(e) During the pendency of RCS No.34 of 2017, the respondent
No. 1 filed an application under Section 11 of the MOFA, 1963,
for grant of deemed conveyance with respect to the plot No. 305,
admeasuring 482.233 Sq. Mtrs (subject property) and plot No.
306.
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4) Petitioner asserts without providing an effective
opportunity of hearing to the petitioner, the Competent
Authority-respondent No. 11 passed an order dated 6 th July,
2020, declaring the respondent No. 1 to be entitled to have a
unilateral conveyance executed and registered under Section 11
(3) of MOFA, 1963. Post haste, the respondent No. 1- Society got
the deemed conveyance registered on 7th October, 2020. Name of
the respondent No. 1-Society came to be mutated to the City
Survey record.
5) The petitioner initially filed Writ Petition No. 3177 of 2021.
By an order dated 24th March, 2022, the said order dated 6 th
July, 2020, was quashed and set aside and the respondent No.
11 was directed to hear and decide the application afresh. Post
hearing, the respondent No. 11 passed the impugned order on
25th April, 2022, again declaring the respondent No. 1 to be
entitled to have a deemed conveyance.
6) Being aggrieved the petitioner has approached this Court
again.
7) Petitioner asserts the Competent Authority could not have
passed order under Section 11 (3) of MOFA, 1963, as Regular
Civil Suit No. 34 of 2017, instituted by respondent No. 1 in
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respect of the title to final plot No. 305 was still pending. In the
face of a clear dispute about the title to final plot No. 305, the
Competent Authority exceeded its jurisdiction in granting
deemed conveyance.
8) An affidavit-in-reply is filed on behalf of the respondent
No. 1 resisting the Petition. Respondent No. 1, inter alia,
contends that the successor in interest of Mr. R.S. Shah had no
subsisting right, title and interest in the subject property. The
Deed of Conveyance dated 5th May, 2018, under which the
petitioner claims to have acquired interest in the subject
property is a sham and bogus instrument and non est in the eye
of law. The purported Power of Attorney executed in favour of
Mr. Pradeep Ratilal Shah, the executant of Deed of Conveyance,
does not find mention of final plot No. 305. Appropriate
proceedings including prosecution, have been initiated against
Mr. Pradeep Shah and the representative of the petitioner.
9) I have heard Mr. Rajesh Datar, the learned Counsel for the
petitioner, Mr. Sandesh Patil, the learned Counsel for
respondent No. 1, Ms. Madhubala Kajale, the learned Counsel
for respondent No. 11 and Mr. Mandar Limaye, the learned
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Counsel for respondent No. 12- Thane Municipal Corporation in
Interim Application No. 18641 of 2022 (for impleadment).
10) Mr. Datar submitted that the Competent Authority
committed a manifest error in passing an order under Section
11 (3) of the MOFA, 1963, despite being fully cognizant of the
fact that the title of respondent No. 1 to the subject property
was in dispute. Taking the Court through the notice dated 11 th
January, 2017, issued by Thane Municipal Corporation and the
prayers in the suit being RCS No. 34 of 2017, instituted by the
respondent No. 1 impugning the said notice, Mr. Datar
submitted that the Competent Authority clearly exceeded its
jurisdiction. The explanation sought to be offered by the
Competent Authority that the said suit was confined to legality
and validity of the notice dated 11 th January, 2017, is legally
unsustainable. Therefore, the impugned order deserves to be
quashed and set aside, submitted Mr. Datar.
11) In contrast, Mr. Patil submitted that the petitioner has, in
fact, no locus to assail the order granting deemed conveyance. If
at all the petitioner has any grievance as regards the proprietary
title over the subject property, it was for the petitioner to
institute a suit on title as the determination under Section 11 (3)
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of the MOFA, 1963, does not impinge upon the title to the
property.
12) Placing reliance on the judgments of this Court in the
cases of Mazda Construction Company and Others Vs.
Sultanabad Darshan CHS Ltd., and Others 1, M/s Shree
Chintamani Builders Vs. State of Maharashtra and Others 2 and
Angeline Randolph Pereira and Others Vs. Suyog Industrial
Estate Premises Co-operative Society Ltd., and Others 3, Mr. Patil
would urge that the Petition is wholly misconceived.
13) Mr. Limaye, the learned Counsel for the Thane Municipal
Corporation- respondent No. 12 in the Interim Application
submitted that the respondent No. 12 is unnecessarily being
dragged into litigation and has no concern with the dispute
between the parties over the title to the subject property.
14) This Court has in a catena of judgments including Mazda
Construction Company (supra) and M/s Shree Chintamani
Builders (supra) has laid down in clear and explicit terms that
an order of deemed conveyance under Section 11 (3) of MOFA,
1963, does not conclude the issue of right, title and interest in
1 2012 SCC Online Bom 1266
2 2016 SCC Online Bom 9343
3 2018 SCC Online Bom 687
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the immovable property, and, thus, a party asserting right to
property, which is the subject matter of deemed conveyance is
not precluded from instituting a suit and claiming appropriate
reliefs including title thereto. This, legal premise needs to be
kept in view.
15) Mr. Datar would urge that since Thane Municipal
Corporation has issued a notice to respondent No. 1 under
Section 89 and 90 of the Maharashtra Regional and Town
Planning Act, 1966 ("the Act, 1966") to enforce the scheme
settled thereunder, the petitioner, who is the successor in
interest of the holders to whom the subject property has been
allotted under the Scheme, is not enjoined to institute a suit to
establish title to the subject property.
16) I find it difficult to accede to this submission. It is
pertinent to note that the respondent No. 1- Society asserts that
the successor in interest of Mr. R.S. Shah, the original holder of
the subject property, had no subsisting interest in the subject
property, which could have been conveyed in favour of the
petitioner. That surely raises a substantial issue as to the
sustainability of the petitioner's claim of proprietary title over
the subject property.
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17) In view of the pronouncement of the Supreme Court in the
case of the Municipal Corporation For Greater Bombay and
Another Vs. The Advance Builders (India) Private Ltd and
Others4, the law is settled that the effect of the settlement of the
scheme under the Act, 1963, and it's coming into force is that
all rights in the original plots of the private owners would
determine and if, in the scheme reconstituted or final plots are
allowed to them, they shall become final subject to the rights
settled by the Arbitrator. However, the question as to whether
the vendors of the petitioner were the persons whom the subject
property came to be allotted under the scheme is a matter for
adjudication. Therefore, the petitioner can not draw any mileage
from the fact that the respondent No. 1- Society had assailed
the legality and validity of the notice issued by Thane Municipal
Corporation under Section 89 and 90 of the Act, 1966.
18) At any rate, the grant of deemed conveyance does not
determine title to the subject land. The Competent Authority
has rightly confined the remit of inquiry to the entitlement of
the respondent No. 1 for deemed conveyance under Section 11 of
the MOFA, 1963. No fault can be found with the impugned
order. Resultantly, the Petition fails.
4 1971 (3) SCC 381
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19) Hence, the following order.
-:ORDER:-
i) The Petition stands dismissed.
ii) Rule discharged.
iii) No order as to costs.
iv) In view of the dismissal of the Petition, the
Interim Application (for impleadment) also stands
dismissed.
[N. J. JAMADAR, J.]
