Bombay High Court
Smt. Nalini Thakkar And Ors vs Mulund Ambe Mahal Chs Ltd. And Ors on 7 September, 2023
Bench: N. J. Jamadar
2023:BHC-AS:26210
7-WP-15942-22.DOC
Sayali Upasani, PA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.- 15942 OF 2022
Nalini Thakkar and Others ...Petitioners
Vs.
Mulund Ambe Mahal CHS Ltd., and Others ...Respondents
Mr.Mayur Khandeparkar i/b Ms. Meena Shah and Maulik
Tanna, for Petitioners.
Mr. A. S. Khandeparkar, Senior Counsel a/w Mr. Nihir
Dedhia i/b Prerak Sharma, for Respondent No. 1- Society.
Mr. Karl Tamboli a/w Vaibhav Kulkarni, Mr Prerak Sharma i/
b Prerak Sharma, for Respondent No. 2.
Mr. P.P. Pujari, AGP for State- Respondent No. 3.
CORAM:- N. J. JAMADAR, J.
RESERVED ON:- 19th JUNE, 2023
PRONOUNCED ON:- 7th SEPTEMBER, 2023
JUDGMENT:-
1) Rule. Rule made returnable forthwith and with the consent
of the learned Counsel for the parties, heard finally.
2) This Petition under Article 227 of the Constitution of India
assails the legality, propriety and correctness of an order passed
by the Deputy Registrar and Competent Authority under the
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Maharashtra Ownership Flats (Regulation of the promotion of
construction, sale, management and transfer) Act, 1963 (MOFA)
("MOFA, 1963"), dated 17th October, 2022, whereby the
Competent Authority was persuaded to issue a Corrigenda so as
to increase the area of the property in respect of which Deemed
Conveyance had been granted by an order dated 29 th May, 2014,
from 1093.40 sq. meter to 1668.1 sq. meter.
3) Background facts leading to this Petition can be stated in
brief as under:-
(a) Odhavji Kuvarji Anjaria, the predecessor in title of the
petitioners, was the holder of land bearing Survey No.1000, Plot
No. 823 ("the subject premises"). The predecessor in title of the
petitioner executed an agreement to sell the subject premises in
favour of Shivshakti Builders, respondent No. 2 - a Partnership
Firm. According to the petitioners, on 14th February, 1978,
respondent No. 2 constructed a building 'Mulund Ambe Mahal'
(subject building) on a larger part of the property. Respondent
No. 2 eventually sold the flats and shops in the subject building
to the purchasers and those purchasers eventually formed a Co-
operative Society being Mulund Ambe Mahal CHS Ltd,
respondent No. 1 herein. As the respondent No. 2 failed to convey
the property on which the subject building came to be
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constructed to the society in accordance with the mandate
contained in Section 11 of the MOFA, 1963, the respondent No. 1
- Society filed an application before the Competent Authority
under Section 11 of the MOFA, 1963 to have a Deemed
Conveyance executed and registered in its favour.
(b) The said application came to be allowed by an order dated
29th May, 2014. The Competent Authority granted Deemed
Conveyance in respect of the property bearing Survey No.1000,
Plot No. 823, CTS No. 938, 938/1 to 28 situated at Mauje
Mulund (West) admeasuring 1093.40 sq. meters in favour of the
respondent No. 1- Society.
(c) The petitioner assailed the said order before this Court in
Writ Petition No.9705 of 2016. By an order dated 15 th December,
2021, a learned Single Judge of this Court was pleased to repell
the challenge holding, inter alia, that the endeavour of the
petitioner was an indirect and systematic attempt to assert the
dead rights under the agreement to sell dated 14 th February,
1978, which stood completely extinguished. The Court was of the
view that the petitioner had no subsisting interest in the subject
premises and instead of respondent No. 2- Developer, the
petitioners herein were putting hindrances in the conveyance of
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the title to the respondent No. 1 - Society in conformity with the
provisions of MOFA, 1963.
(d) The said order was challenged by the petitioners before the
Supreme Court in SLP No. 7306 of 2022. By an order dated 18th
July, 2022, the Supreme Court declined to interfere in the
aforesaid order passed by this Court.
(e) In the meanwhile, respondent No. 1 - Society again
approached the Deputy Registrar and Competent Authority for
rectification of the order of Deemed Conveyance and the
certificate dated 29th May, 2014 so as to correct the area of the
property to be conveyed thereunder from 1093.40 sq. meter to
1668. 1 sq. meter. It was, inter alia, asserted that the area of the
plot mentioned in the original application for Deemed
Conveyance was 1093.40 sq. meters though the plan and the
record of right indicated that the total area was 1668. 1 sq.
meter, to which respondent No. 1- Society was entitled to.
(e) The petitioners resisted the said application on the ground,
inter alia, that the Competent Authority was not empowered to
review its own order and such an application was not tenable.
(f) By the impugned order, the Deputy Registrar and the
Competent Authority was persuaded to allow the application
heavily relying upon the observations of this Court in its
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judgment dated 15th December, 2021 in Writ Petition No. 9705 of
2016, preferred by the petitioners. It was held that while granting
Deemed Conveyance by order dated 29 th May, 2014, the area of
CTS No. 938 (1093.4 sq. meter) only was taken into account and
the total area of CTS 938/1 to 938/28 was not considered.
Therefore, the Competent Authority issued the Corrigenda so as
to correct the area of the property to be unilaterally conveyed to
the Society.
(f) Being aggrieved the petitioners have again invoked the writ
jurisdiction of this Court.
4) I have heard Mr. Mayur Khandeparkar, the learned
Counsel for the petitioners, Mr. A. S. Khandeparkar, the learned
Senior Counsel for respondent No. 1- Society, Mr. Karl Tamboli,
the learned Counsel for respondent No. 2- Developer and the
learned AGP for the State- Respondent No. 3. The learned
Counsel took the Court through the pleadings, material on
record and the orders passed by the Competent Authority.
5) Mr. Mayur Khandeparkar, canvassed multi-pronged
submissions. First and foremost, according to Mr. Mayur
Khandeparkar, the Competent Authority is not vested with the
power of review. Being an authority created under the statute,
the Competent Authority is enjoined to discharge its functions
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within the bounds of the law. No power of review has been
conferred on the Competent Authority. Therefore, the Competent
Authority could not have reviewed its own order so as to enhance
the area of land to the prejudice of the petitioners. Secondly, by
the impugned order, the Competent Authority granted
respondent No. 2 reliefs which were not originally prayed. In the
application, preferred in the year 2013, the respondent No. 1 had
claimed Deemed Conveyance in respect of the area admeasuring
1093. 40 sq. meters only. Thus, the Competent Authority could
not have granted more than what was prayed for by the
respondent No. 1. Thirdly, none of the aforesaid contentions were
adequately dealt with by the Competent Authority.
6) Mr. Mayur Khandeparkar would also urge that, at any
rate, the material on record shows that the respondent No. 2 was
not a promoter qua the unsold part of the subject premises.
Ownership in respect of those portions continued to vest in the
predecessor in title of the petitioners, during his lifetime, and in
the petitioners, after his death. The Competent Authority,
according to Mr. Mayur Khandeparkar, without adverting to the
aforesaid facts, passed the impugned order which does not fall
within the ambit of the restrictive power of correcting
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typographical or clerical errors. The impugned order, on the
other hand, constitutes a substantive review of original order.
7) Mr. A. S. Khandeparkar countered the submissions on
behalf of the petitioners. Mr. A. S. Khandeparkar urged with a
degree of vehemence that all these contentions, which are now
sought to be raised were, in fact, duly raised in Writ Petition
No.9705 of 2016 and summarily rejected. Mr. A. S. Khandeparkar
would further submit that this Court in Writ Petition No. 9705 of
2016 made scathing observations. In the face of those
observations, which manifest that this Court found that the
petitioners had no subsisting interest in the subject premises,
instant Petition is but a link in the chain of vexation and delay.
Mr. A. S. Khandeparkar placed a very strong reliance on the
observations of this Court in the judgment in Writ Petition No.
9705 of 2016, which according to Mr. A. S. Khandeparkar,
unmistakably show that there is no semblance of title left in the
petitioners.
8) Mr. Tamboli supplemented the submissions of Mr. A. S.
Khandeparkar. It was urged that a cumulative reading of the
agreement to sell executed by the predecessor in title of the
petitioners in favour of respondent No. 2 dated 14 th February,
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1978 and the MOFA agreement executed by respondent No. 2-
Developer in favour of one of the flat purchasers and MOU
executed by and between the petitioners and respondent No. 2 -
Developer, leads to a legitimate inference that what was conveyed
to the respondent No. 2 under the agreement to sell dated 14th
February, 1978 was the entire subject premises admeasuring
(1995 sq. yards) equivalent to 1668. 1 sq. meter. Since in the
order passed by the Deputy Registrar in the year 2014, there is a
reference to CTS No. 938/1 to CTS No. 938 /28 as well, the
endeavour of the petitioners to question the rectification on the
ground that it amounts to review of the order does not merit
acceptance. In substance, the petitioners having been divested of
all the right, title and interest in the subject premises have no
cause to question the impugned order, submitted Mr. Tamboli.
9) Before adverting to deal with the aforesaid rival
submissions, I deem it apposite to note few uncontroverted facts
so as to narrow down the controversy. Execution of the
agreement to sell on 14th February, 1978 by the predecessor in
title of the petitioners in favour of respondent No. 2 is
incontestable. Under the said agreement to sell, the vendor
agreed to sale the property bearing plot No. 823, Survey No. 1000
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admeasuring 1995 sq. yards. Indisputably, the respondent No. 2
- Developer constructed the subject building and sold the flats
and shops therein, to purchasers, who formed the respondent
No. 1- Co-operative Housing Society.
10) Though there is controversy over the alleged termination of
the agreement to sell dated 14th February, 1978, the parties
especially the petitioners and respondent No. 2 do not seem to be
at issue on the point that a MOU came to be executed between
the petitioners and respondent No. 2 on 29 th March, 2004
purportedly confirming the sale and development rights in
respect of the subject premises. It is a different matter that the
petitioners claim to have terminated the aforesaid MOU as well
by giving notices in the year 2009 and 2010.
11) In the articles of agreement executed by respondent No. 2
in favour of the purchasers, the area of land on which the
building was to be constructed was shown as Plot No. 823,
admeasuring 997 ½ and 823 part admeasuring 997 ½ sq.
meters. There is indeed a controversy over the area, which the
respondent No. 2 - Developer agreed to convey to the respondent
No. 1- Society under MOFA, 1963 to which I shall advert little
later.
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12) The facts that the respondent No. 1- Society had sought an
order of unilateral Deemed Conveyance and it came to be granted
by an order dated 29th May, 2014 passed by the Deputy Registrar
and the challenge thereto failed up to the Supreme Court are
also incontestable. The controversy between the parties
essentially revolves around the legality and validity of the
impugned order of the issue of Corrigenda. As a subset, the
parties are at issue as to whether respondent No. 2 - Developer
had agreed to convey the entire subject premises to respondent
No. 1- Society.
13) To begin with, the challenge on the ground of absence of
statutory authority. Mr. Mayur Khandeparkar strenuously
submitted that disguised as rectification, the Competent
Authority has granted a prayer, which was not made in the
original application. It clearly transgresses the scope of
rectification. To bolster up of this submission, Mr. Mayur
Khandeparkar placed a heavy reliance on a decision of a learned
Single Judge of this Court in the case of Kashish Park Realty
Private Limited and Others Vs. The State of Maharashtra and
Others1.
1 2021 (3) Mh. LJ 778
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14) The learned Counsel for the respondent, however, urged
that the exercise clearly falls within the bounds of "rectification"
of a patent error.
15) It is trite in the absence of a prescription in the Statutes/
Rules empowering a judicial tribunal or administrative authority
to review its own order, an application for review of judicial/
quasi-judicial order is not tenable. An order of review in the
absence of such a mandate can be termed a jurisdictional error.
16) In the case of Kashish Park (supra), the learned Single
Judge in the facts of the said case held that the order of issue of
Corrigenda challenged therein was bereft of reasons and far
exceeded the scope of rectification. The observations in
paragraph No. 28 are material and, hence, extracted below.
"..28...In the present case, the impugned Corrigenda
do not meet the mandate and legal requirement set
out in the aforesaid summarization. The impugned
Corrigenda, which are bereft of reasons have resulted
in miscarriage of justice and are not sustainable.
Furthermore, the impugned Corrigenda are totally at
variance with and diametrically contrary to the
findings recorded in the orders dated 22/7/2020.
The impugned Corrigenda do not rectify a procedural
error or an error apparent on the face of record but
reverses the natural sequitur and consequences of
the findings recorded in orders dated 22/7/2020,
which is not permissible even in exercise of powers of
review. Issuance of such Corrigenda is clearly an
arbitrary exercise of authority without jurisdiction. "
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17) Though Mr. Mayur Khandeparkar endeavored to impress
upon the Court that the impugned order is vulnerable for not
having considered the challenge mounted by the petitioners to
the tenability of the application for rectification, yet I find it
rather difficult to accede to this submission. The Competent
Authority has ascribed reasons which weighed with it in
correcting the area of the property in respect of which Deemed
Conveyance was to be executed and registered. The impugned
order cannot be termed as bereft of reasons, though the
justifiability of those reasons can be put in contest.
18) This takes me to the pivotal issue as to whether the
impugned order is a review disguised as a rectification. For an
answer, it is necessary to delve into the nature of the
instruments under which the parties professed to convey the
subject premises, the agreement executed under MOFA, 1963,
the application made under Section 11 (3) of MOFA, 1963 before
the Competent Authority and the original order passed by the
Competent Authority in the year 2014.
19) In the agreement to sell dated 14th February, 1978, the
predecessor in title of the petitioners agreed to sell the land and
structures standing thereon situated at plot No. 823, Survey No.
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1000 admeasuring 1995 sq. yards. In clause 12 of the said
agreement to sell, it was further clarified that the area of the
property agreed to be conveyed thereunder was 1995 sq. yards
and if it turned out that the area was more or less, there would
be no change in the consideration agreed to be paid. In the
Schedule appended to the agreement the property to be conveyed
thereunder was described in two parts: Plot No.823 admeasuring
997/ ½ and Plot No. 823 part admeasuring 997 ½.
20) From the perusal of the agreement to sell dated 14th
February, 1978, it becomes evident that the entire subject
premises along with structures standing thereon comprised in
Survey No. 1000, Plot No. 823 admeasuring 1995 sq. Yards was
agreed to be sold. (1995 sq. yards is equivalent to 1668 sq.
meters). Conversely, it does not appear that the vendor had
reserved unto himself any portion of the property bearing Survey
No. 1000, Plot No. 823.
21) Then come the agreements executed by the respondent No.
2 - Developer in favour of the then prospective purchaser of the
units in the subject building constructed on the subject
premises. In addition to the usual clauses, which are required to
be incorporated in an agreement envisaged by MOFA ,1963, the
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Schedule appended to the said agreement (dated 19 th June, 1982
in favour of one Sudhakar J Shetty) indicates that the property
which was the subject matter of the said agreement was Survey
No. 1000, Plot No. 823, admeasuring 997 ½ and Plot No. 823
part admeasuring 997 ½ sq. meters, which corresponds to the
description of the property in the agreement to sell dated 14 th
February, 1978.
22) Mr. Mayur Khandeparkar would, however, urge that the
aforesaid description of the property in the schedule appended to
the agreement cannot be construed de-hors the recitals in the
agreement. It was submitted that though the entire subject
premises was described in the schedule as the subject matter of
the agreement under MOFA, 1963, yet the clauses in the said
agreement make it abundantly clear that the respondent No. 2
had not agreed to convey the portions of the property especially
the structures B, C and D, which stood thereon, and reserved
unto itself the right to develop the area covered by those
structures. Special emphasis was laid on clauses 30 and 41 of
the agreement dated 19th June, 1982. They read as under:-
"...30. There are certain existing structure as shown on
the plan annexd as marked "A", and out of the said
structure, the New building is constructed by the Builder
after demolishing the Building structure A, E & F. The
tenants accommodated in the New Building and the
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tenants will become members of the Company or the
Society including the Buyer before the execution of the
lease in favour of the company or the Society. The
structure B, C & D will remain with the builder, and the
occupier of the New Building will not take any objection
or question for the same. Subject to the permission of
competent authority appointed under the Urban Land
(Coiling & Regulations) Act, 1976 the Builders shall
execute a lease for 999 years at an yearly rent of Rs.1/-
to be paid by the said New Building Occupier, of the said
land under the Building directed thereon in favour of the
said society, Limited Company or an Association of
Apartment Owners as the case may be within six months
from the formation and registration of the said Society
Limited Company or an Association of Apartment
Owners as the case may be or from the date on which all
the building intended to be put on the tenements therein
are given to the respective Buyer/s thereof whichever is
later provided that the Builders have been paid and have
received full consideration equivalent to the total of the
price payable by all the flat/shop/garage holders.
.....
41. On the date of execution of this agreement there
are 6 structures marked A, B, C, D, E & F on the plan
hereto annexed as Exhibit"A" and a well. All structures
marked A, B, C, D, E & F were residential premises and
F is a sanitary block. This agreement is subject to the
absolute right of the Builder in respect of the entire plot
more particularly described in the Schedule hereunder
written and the said 6 structures and the said well
referred to above and shown on the plan hereto annexed
also as referred to above. It is agreed that when the
building as shown on the plan hereto is ready in all
respects and occupied by the flat buyers and the shop
premises buyers, the builders and/or other necessary
parties shall execute a lease in respect of the building
under parties shall execute a lease in respect of the
building under construction as shown on the plan herein
annexed in red boundary line and marked on the plan
hereto annexed with the words "NEW BUILDING" for a
term of 999 years at an yearly rent of Rs.1/- to be paid
by the said now building occupiers. The Co-operative
Housing Society or the premises Co-operative Society or
the Limited Company or the Association of Apartment
owners as the case may be shall be given right to use
underground tank, water mnins electricity, cable,
telephone wires etc. under and above said land more
particularly described in the Schedule hereunder written
but without any right of ownership thereof. It is
distinctly understood that the entire land including all
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structures thereon shall belong to the builders
abovenamed absolutely and that a lease of 999 years of
the said New Buildings shall be given by the builders
and/or other necessary parties to the body of the flat or
premises buyers in the said New Building when the flat
or premises buyers form and register themselves into a
Co-operative Society, a Limited company or an
Association of Apartment Owners."
23) Mr. Tamboli would submit that the aforesaid interpretation
sought to be put on the aforesaid clauses does not flow from the
agreements executed between the parties, if read cumulatively.
Laying emphasis on the latter part of Clause 41 (italicized
portion) that the entire land including all structures thereon
belonged to the builders absolutely and that only a lease of 999
years of the new building should be given by builders when the
purchasers formed themselves into a Co-operative Society or a
Limited Company or an association of apartment owners, Mr.
Tamboli submitted that the aforesaid clauses in the agreement
dated 19th June, 1982 do not derogate from the complete vesting
of the entire survey No., 100, plot No. 823 admeasuring 1995 sq.
yard under the agreement to sell dated 14th February, 1978, in
respondent No. 2.
24) Mr. Tamboli invited the attention of the Court to the MOU
dated 29th March, 2004 whereby the petitioners confirmed the
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agreement to sell dated 14th February, 1978, particularly, the first
clause of the said MOU, which reads as under:-
" As the Second party desire to develop the balance
portion of the said property as per the present rules
and regulations of the Municipal Corporation and
other Government Authorities, are also desires to
acquire the confirmation of the Agreement dated 14 th
February, 1979 and fresh power of Attorney from the
Legal heirs of Odhavji Kuvarji Anjaria, the First Party
herein on the terms and conditions as well mentioned
in Agreement dated 14th February, 1979 as also
mentioned hereunder. The First Party have agreed and
are willing to execute necessary Power of Attorney,
Confirmation of the Agreement, Declaration etc for
purpose of development of the caption property by the
Second Party..."
25) Mr. Mayur Khandeparkar joined the issue by submitting
that even the said MOU stood terminated by the petitioners. An
endeavour was made to invite the attention of the court to the
public notice issued on behalf of the petitioners and a legal
notice dated 4th February 2010 (Exh J to the affidavit in
rejoinder).
26) I am afraid that the proceedings before the Competent
Authority, or for that matter this Petition, can not be converted
into a proceedings for adjudicating the contentious issues
between the petitioners and respondent No. 2-Developer. The fact
remains that pursuant to the agreement to sell, respondent No. 2
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developed the subject premises and sold the units therein to the
purchasers and thus subjected himself to regime under MOFA,
1963. In this view of the matter in the instant Petition, the
petitioners can not be permitted to agitate the ground that their
predecessor in title had not conveyed the entire subject premises
in favour of respondent No. 2.
27) The ambit of the power of the Competent Authority and the
scope of inquiry under Section 11 of MOFA 1963 are well settled.
The authority to grant deemed conveyance is conditioned and
controlled by the primary obligation of the promoter to convey to
the organization of flat purchasers right, title and interest in the
land and buildings, in accordance with the agreement executed
under Section 4. Competent authority cannot convey more than
what the promoter had agreed to convey under the agreement
executed under Section 4. What competent authority is thus
required to consider is, the extent of the obligation incurred by
the promoter, whether the obligation to execute the conveyance
became enforceable and whether the promoter committed default
in, or otherwise disabled himself from, executing the conveyance.
28) The enquiry is thus of limited nature. The competent
authority cannot delve into the aspects of title. Nor the finding of
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the competent authority precludes a party from agitating the
grievance as to the entitlement of the organization of purchasers
to have the conveyance, before the Civil Court. The remit of
enquiry by the competent authority is, thus, whether the
conditions stipulated for enforcement of the obligation to execute
the conveyance have been satisfied and, if yes, order an
unilateral deemed conveyance.
29) It is in the aforesaid context, reference to the judgment of
this Court in Writ Petition No. 9705 of 2016 assumes
significance. The observations of this Court in paragraph Nos.
13, 14 and 15 are material and, hence, extracted below.
"13. At the outset, it is required to be noted that it
is not in dispute that the petitioners had entered
into an agreement to sell dated 14 February, 1978
with the developer which is almost about four
decades back. The said agreement was admittedly
acted upon, on which there is no dispute, as the
developer exercising complete rights unhinderedly
completed the construction of the building which
he ought to have conveyed in favour of the
society as per the provisions and obligations as
mandated under the Act. The developer after
following the procedure of law formed a society on
5 December, 1984. There appeared to be no
embargo at any point of time or any prohibition
which was asserted by the petitioners in the
developer completing the construction of the
building and handing over of the tenements in
favour of the flat purchasers, who are now
members of the society. Further a perusal of the
Memorandum of Understanding dated 29 March,
2004 which came to be entered almost after about
26 years between the petitioners and the developer
would indicate and as rightly pointed out by Mr.
Khandeparkar that a complete arrangement was
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agreed between the said parties, at least in regard
to the area ought to be entitled to the society, and
the construction of the building undertaken by the
developer, was not a matter of any issue or dispute
between the parties.
14. Be that as it may, once the society was
registered anything which may happen between
the petitioners and the developer ought not to be of
any relevance in so far as the right of the society,
which is statutory in nature to avail of a deemed
conveyance and more particularly considering the
mandatory provisions of Section 10 read with
Section 11 of the Act. The developer admittedly had
failed to make a conveyance in favour of the
society. Eventually the society was required to
invoke the jurisdiction of the competent authority
by making an application for a deemed conveyance
on 26 July, 2013, which is granted by the
impugned order. If these are the admitted facts, in
my opinion, the first contention as urged on behalf
of the petitioners that it was an obligation on the
part of the competent authority to look into clause
14 of the agreement entered by the developer
alongwith the flat purchasers namely that the
agreement would not be construed a transfer,
assignment, demise or conveyance of the said
right, title and interest in the said land to
undertake the building therein till a proper Lease
for 999 years at an yearly rent of Rs.1/- to be paid
by the buyer and registered in favour of a limited
company, association of apartment owners or a
Co-operative Housing Society as the case may be
to be formed, is completely irrelevant. In fact, such
a clause in my opinion, supports the flat
purchasers, as the said clause reflects that a long
lease for 999 years was entitled in favour of the
society, such lease of 999 years would be required
to be understood to be as good as an ownership
being conferred on the society. There cannot be
any other reading of such clause, to hold that such
clause restricted the rights of the developer to
convey the land in favour of the society. The
contention as
urged on behalf of the petitioners referring to
clause 14 of the agreement is thus required to be
rejected.
15. In so far as the other contention as urged on
behalf of the petitioners that there is likelihood
that the rights of the petitioners would be affected
by the said deemed conveyance also cannot be
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accepted. It appears to be quite clear that the
petitioners at no point of time had asserted in any
proceedings or by any other method as known to
law, any of their rights either under the original
agreement dated 14 February, 1978 or the
subsequent MOU entered with the developer. It is
only when a deemed conveyance was sought to be
obtained by the society by making an application
before the competent authority, the developer
remaining a mute spectator, the petitioners
appears to have grabbed an opportunity to assert,
and probably their dead rights which they could
not have at all asserted against the developer, so as
to have a back door entry. The petitioners on such
plea cannot in any manner create hurdles in the
society obtaining a deemed conveyance in respect
of the plot and which ought to have been granted
by the developer to the society. If at all the
petitioners had any interest in the said land which
was subject matter of the agreement dated 14
February, 1978 which the petitioners had failed to
assert, and such rights which today are possibly
barred by limitation, could not have been asserted
in this indirect manner in obstructing the society
from obtaining a deemed conveyance. In my
opinion, the entire endeavour of the petitioners is
an indirect and a systematic attempt by which they
intend to assert dead rights under the agreement
to sell dated 14 February, 1978 which, as noted
above, completely stood extinguished and certainly
qua the society. Such back door entry to assert
such unasserted rights is certainly not
permissible. In my opinion, the petitioners' case is
mischievous so as to cause an unwarranted
harassment to the society, when the building of
the society stands demolished having outlived its
life. As noted above the developer has remained to
be a mute spectator. I would not be surprised that
having taken such position, he has put up the
petitioners to oppose a deemed conveyance for
extraneous considerations."
30) This Court went on to note that if at all the petitioners had
any interest in the subject premises, the petitioners failed to
assert the same and such rights were possibly barred by
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limitation and could not have asserted in an indirect manner by
obstructing the Society from obtaining a Deemed Conveyance.
This Court held, in no uncertain terms, that the petitioners
could not have asserted dead rights under the agreement to sell
dated 14th February, 1978, which completely stood extinguished
and certainly qua the society.
31) In view of the aforesaid analysis and enunciation by this
Court in an earlier round of litigation between the same parties, I
find it rather difficult to accede to the submission of Mr. Mayur
Khandeparkar that the aforesaid observations do not preclude
the petitioners from agitating the issue that under the agreement
envisaged by MOFA, 1963, the respondent No. 2 did not agree to
convey the entire subject premises. It is true a society of flat
purchasers is entitled to obtain conveyance of only that property
which the promoter/developer agreed to convey. A Society has no
right to insist on the conveyance of a property beyond the
obligation incurred by the promoter, under MOFA, 1963. This
principle, however, in the peculiar facts of the case, does not
enure to the benefit of the petitioners. The reasons are not far to
seek.
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32) First and foremost, the agreement under MOFA, 1963
would not derogate and detract from the title of respondent No. 2
under the agreement to sell dated 14th February, 1978.
Incontrovertibly under the said agreement to sell dated 14th
February, 1978, the predecessor in title agreed to sell the entire
Survey No. 1000, Plot No. 823 admeasuring 1995 sq. yards.
Second, if the agreement under MOFA, 1963 is read as a whole,
it does not necessarily follow that the entire land was not agreed
to be conveyed in favour of the society of purchasers. As
extracted above, respondent No. 2 laid claim of absolute title over
the entire land and all the then-existing buildings thereon and
professed to grant only a lease of 999 years to the society of the
flat purchasers. Therefore, the said agreement can not read in
such a fashion as to vest reversionary right, title and interest in
the portion of the subject premises in favour of the vendors of
respondent No. 2. Thirdly, the MOU dated 29th March, 2004
confirms the execution of the said agreement to sell dated 14th
February, 1978 in favour of the respondent No. 2. Even at that
point of time, it appears, it was not in the contemplation of the
parties that some portion of the subject premises was retained
by vendor. Lastly, as indicated above, in this Petition,
the question as to whether there was a complete
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vesting of the title to the entire Survey No. 1000, Plot No. 823,
admeasuring 1995 sq. yards (1668 sq. meters), in the respondent
No. 2 cannot be delved into.
33) This leads me to the consideration of the application
preferred by respondent No. 1 - Society before the Competent
Authority. Undoubtedly, in the application there is reference to
Survey No. 1000, Plot No. 823, CTS No. 938, admeasuring 1093.
4 sq. meter only. An order of unilateral Deemed Conveyance was
also sought in respect of the said property admeasuring 1093.4
sq. meters. The order passed by the Competent Authority on
29th May, 2014, indicates that after referring to the property
cards, the Competent Authority granted the conveyance in
respect of Survey No. 1000, Plot No. 823, CTS No.938, 938/1 to
28 admeasuring 1093.4 sq. meter. Evidently, the property card of
CTS No. 938 shows the area of the said property as 1093.4 sq.
meters. The area covered by the rest of the properties registered
at property No. 932.1 to 932.28, was not taken into accout. It is
this discrepancy in the area, which the Competent Authority
sought to rectify by the impugned order.
34) If the Court proceeds on the premise that title to Survey
No. 1000, Plot No. 823 admeasuring 1998, sq. yards, which for
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the reasons indicated above is the justifiable course, vested in
respondent No. 2 developer, and the respondent No. 2, in turn,
developed and agreed to convey the entire subject premises to
the Society, the impugned order would fall in the realm of
rectification. Even otherwise, since the petitioners do not profess
to draw support and sustenance to their contention from the
agreement to sell dated 14th February, 1978 executed by their
predecessor in title in favour of respondent No. 2 but from the
agreement executed by respondent No. 2 in favour of the
prospective purchasers (under MOFA 1963), the person who can
legitimately raise the grievance is the respondent No. 2. That
being not the case, the petitioners cannot assail the order of
rectification by submitting that the original agreement, or for
that matter, the MOU dated 29 th March, 2004 stood terminated.
That dispute is clearly beyond the remit of the proceeding under
Section 11 (3) of MOFA, 1963. The petitioners ought to have
agitated the said grievance by approaching the jurisdictional
Court for appropriate reliefs.
35) To add to this, the unsustainability of the petitioners' stand
has been ruled by this Court in empathetic terms in writ Petition
No. 9705 of 2016.
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36) For the foregoing reasons, I do not find any merit in this
Petition. Hence, the following order.
ORDER
I) The Petition stands dismissed.
II) Rule stands discharged.
III) Parties to bear their own costs.
[N. J. JAMADAR, J.]
At this stage, the learned Counsel for the petitioners seeks
continuation of the statement made on behalf of the respondent
No. 1 that the respondent No. 1 would not take steps pursuant
to the impugned order.
The learned Counsel for the respondent Nos. 1 and 2
opposes the prayer on the ground the re-development project
has been stalled.
In the light of the nature of the controversy, I deem it
expedient in the interest of justice to direct that the impugned
order shall not be given effect to for a period of four weeks from
today.
Ordered accordingly.
[N. J. JAMADAR, J.]
