Bombay High Court
Puranik Buildcon Pvt. Ltd. Thr. ... vs Aldea Espanola Phase Ii Chs Ltd Thr. ... on 11 November, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:43178
WP-4578-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4578 OF 2023
Puranik Buildcon Pvt. Ltd ]
through its Director ]
Mr. Shailesh Gopal Puranik. ]
Reg. Office Kanchanpushpa, Kavesar, ]
Ghodbandar Road, Thane (W), - 400065. ] ...Petitioner.
Versus
1. Aldea Espanola Phase-II CHS Ltd. ]
Through its Secretary /Chairman ]
Address : Survey No.12/3 +4+5+5/1+12+13+ ]
14+15+16/2 and plot No.16(Part), Mhalunge, ]
Tal : Mulshi, Pune 14. ]
2. Competent Authority and District ]
Deputy Registrar, Co-operative Societies, ]
Pune City, Pune, Shivaji Nagar, Pune -5. ]
3. The Sub Registrar, Taluka : Haveli, ]
Dist : Pune, Pune. ]
4. The State of Maharashtra, ]
Notice to be issued to the Learned GP, ]
Appellate Side, Writ Cell, ]
Bombay High Court, Mumbai-32. ] ...Respondents.
------------
Mr. Jaydeep Deo for the Petitioner
Mr. S. S. Panchpor and Ms. N. S. Mahadik for Respondent No. 1.
Mr. T. J. Kapre, AGP for Respondent Nos. 2 and 3.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : September 26, 2024.
Pronounced on : November 11, 2024.
Judgment :
1. Rule. Rule made returnable forthwith with consent and taken
up for final hearing.
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2. By this petition, exception is taken to the order dated 8 th
December, 2020 passed by the Competent Authority under Section
11(3) of MOFA in Deemed Conveyance Application No. 135 of 2020.
By the impugned order, the Competent Authority has granted
certificate for execution of unilateral deed of conveyance in respect of
area admeasuring 9662.41 sq. mtrs. including the open space, club
house and constructed built up area of 14034.88 sq. Mtrs.
3. Facts of the case are that the Respondent No.1-Society is part of
larger layout admeasuring about 63840.59 sq. mtrs. situated at
Mhalunge, Taluka- Mulshi, Pune-14. The Respondent No.1 who was
the Applicant before the Competent Authority is a Society comprising
of four buildings that is B1 to B4 known as Aldea Espanola Phase-II Co-
operative Housing Society Ltd. An application came to be filed in the
prescribed Form-VII under Rule 12 of the Rules of 1964 framed under
MOFA by the Respondent No.1 seeking deemed conveyance in respect
of land admeasuring 23028.16 sq. mtrs along with the constructed
built up area of 14034.90 sq. mtrs. The impugned order records that
public notice was issued on 7th October, 2020 in newspaper circulating
in Pune, however, the Petitioner did not remain present for the
hearing and therefore, the Competent Authority heard the
Respondent No. 1 and proceeded to pass the impugned order. The
Competent Authority considered the sanctioned plan and accordingly
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conveyed an area of 9662.41 sq. mtrs. inclusive of club house and
open spaces along with constructed area of 14034.88 square meters.
4. Heard Mr. Jaydeep Deo, learned counsel for Petitioner, Mr.
Panchpor, learned counsel for Respondent No.1 and Ms. Kapre,
learned AGP for Respondent Nos. 2 and 3.
5. Mr. Deo would submit that Respondent No.1-Society was part of
larger layout which is still under development. He submits that there
was no service of notice upon the Petitioner as in the application
seeking deemed conveyance, the address given is of office address at
Thane, whereas, the public notice has been issued in the newspaper
circulating in Pune. He claims a right to be heard and seeks remand.
On merits, he points out to the sanctioned plan, and submits that the
development was in phased manner and the Respondent No.1 was not
entitled to the exclusive use of open space admeasuring 1607.45 sq.
mtrs. as well as club house. He submits that the common amenities
was meant for use of all buildings in the layout. He would submit that
there is no objection as far as deemed conveyance in respect of an
area which will be required to sustain the built up area, however,
open space and club house cannot be conveyed to the Respondent
No.1-Society. Pointing out Clause No. 14 of the flat purchasers
agreement, he submits that an Apex body was required to be formed
of all the societies in the layout and all common amenities, open
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spaces etc. was required to be transferred to the apex body. He would
further submit that as per clause No. 14(c), the common area and
external facilities described in Part B of 4 th schedule may be put up or
provided by the promoter on the property or of any of the plots
adjoining or being in the vicinity of the said property. He submits that
as per the Government Resolution of 22 nd June, 2018, in case where in
a common layout there are more than one buildings, the Competent
Authority is required to convey an area proportionate to the built up
area or the ground coverage plinth area and an undivided share in the
common amenities and open spaces, which has not been followed.
6. Per Contra, Mr. Panchpor, would submit that in the flat
purchasers agreement what has been defined as complex/project is
the complex known as Aldea Espanola, which is the Respondent No 1-
Society. He submits that the open space and the club house is
exclusive to the Respondent No.1-Society, whereas, the other
buildings in the layout are located at a distance and it is
incomprehensible that open spaces forming part of the different
clusters of buildings would be available to all members of the
different Co-operative Societies. He would point out the Architect's
Certificate which is annexed to the affidavit-in-reply filed by the
learned AGP and would submit that the Architect's Certificate
indicates that the total constructed area is 14034.90 sq. mtrs. and
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therefore, the proportionate area to be conveyed to the Society
including the open space will be 9662.41 sq. mtrs. He would further
submit that in event, the Petitioner developer is claiming any right in
open space, the same constitutes a disputed question on title which
would require the filing of a civil suit. He submits that as held by this
Court in the case of ACME Enterprises vs. Deputy Registrar of Co-
operative Societies1, the inquiry contemplated is of limited nature
and the Competent Authority cannot deal with issues of title. He
submits that as the contentions of Petitioners raised a title dispute in
respect of open space and the club house, the Petitioner should be
relegated to the remedy of filing a civil suit.
7. In rejoinder, Mr. Deo would submit that, the flat purchaser's
agreement is very clear that the common amenities are spread over
the entire layout and that the expression complex/project is referable
to the entire complex known as Aldea Espanola and not to the
Respondent No.1-Society, which is one of the phases of the entire
project. He would further point out that the flat purchaser's
agreement refers to the entire larger area as the "said land property"
in which the entire complex known as Aldea Espanola is to be
constructed.
8. Considered the submissions and perused the record.
1 2023 SCC OnLine Bom. 1102.
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9. The only issue which would arise for consideration is whether
the Competent Authority was right in conveying the open space and
the club house to the Respondent No.1-Society in light of the flat
purchaser's agreement. The grievance is not about grant of deemed
conveyance, but, to the deemed conveyance granted in respect of
open space and the club house which according to Petitioners is a
common amenity for all buildings in the layout. Before proceeding
further, it will be necessary to have a look of the statutory scheme of
Section 11 of the MOFA and the Rules of 1964 which provides that
the promoter is required to take all steps to complete his title and
convey his right, title and interest in the land or building in accordance
with the agreement executed under Section 4 of MOFA. The
satisfaction which is required to be arrived at by the authority is that
there is non compliance by the promoter of its obligation to execute
the conveyance within a period of four months from the date of which
the Co-operative Society is registered as per Rule 9 of the MOFA
Rules, 1964. In the present case, the Respondent No.1-Society had
demanded conveyance of land area admeasuring 23028.16 sq. mtrs.
along with constructed built up area of 14034.90 sq. mtrs.
10. As far as the issue of service upon the Petitioner is concerned,
the address of the Petitioner mentioned in the application filed
before the Competent Authority is the same address which has been
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mentioned by the Petitioner in the present Petition. Under Rule 13 of
the Rules of 1964, which provides for the scrutiny of application and
notice to the parties, the Competent Authority on admitting the
application is required to issue a notice in Form X to the Opponent
requiring it to file written statement, which notice is to be served by
registered post acknowledgment or under certificate of posting at
their last known address. Sub-rule (3) of Rule 13 of MOFA Rules
provides that if the Opponents do not appear on the date of hearing,
the Competent Authority may decide the same on its own merits after
hearing the Applicant.
11. The Deputy Registrar of Co-operative Societies has filed
Affidavit in reply contending that the notices were issued via
registered post and has annexed the office copy of the notice. The
Deponent has further stated that thereafter public notice was issued
in daily newspaper "Dai.Punyanagri" and the Opponent having roaring
presence in Pune and Thane ought to have functional office at Pune.
The Deponent has stated that as the Thane staff of the Petitioner was
working from home, by inference, Pune staff must also be working
from home and should keep track of any such publication. Perusal of
the copy of notice indicates that the same was issued on 11 th August,
2020 which was during Covid pandemic and there is no
acknowledgment of receipt of notice. Further the public notice was
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admittedly issued in daily newspaper circulating in Pune on an
inference that the Petitioner must be having an office in Pune and the
staff at Pune must be working from home and should keep track of
publication.
12. For the service to be considered as valid service, it is necessary
that the service is effected at the known address of the Opponent.
There is no mention of any Pune address in the application and
therefore the issuance of public notice in daily newspaper circulating
in Pune based on inference of Petitioner's presence in Pune cannot
constitute valid service. There is also no acknowledgment of receipt
of notice sent by registered post. The notice issued during Covid-19
pandemic probably would not be received by the Petitioner. The
issuance of public notice circulating in an area where the Petitioner is
not shown to have any office has no meaning and cannot constitute
valid service.
13. Coming to merits of the matter, the well settled position in law
is that while adjudicating an application under Section 11(3) of MOFA,
the Competent Authority has to convey the right, title and interest of
the promoter in the land and building in accordance with flat
purchaser's agreement.
14. Perusal of the impugned order indicates that the Competent
Authority has considered the sanctioned plan and the Architect's
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Certificate and granted deemed conveyance of land area admeasuring
of 9662.41 square meters inclusive of open space and club house and
constructed built up area of 14034.88 square meters. The Architect's
certificate produced by the Respondent No.1 gives the Plot Area
statement of the Respondent No.1-Society as under:
"ARCHITECTS CERTIFICATE
TO WHOMESOEVER THIS MAY CONCERN
SOCIETY NAME AND ADDRESS: 'ELDIA ESPONIOLA PHASE 2 SAHAKARI GRUHA
RACHANA SANSTHA MARYADIT. BUILDING B1 TO B4 ON PLOT NO. 16(P)
SITUATED AT SURVEY NO.12/3+4+5+5/1+12+13+14+15+16/2, VILLAGE
MAHALUNGE, TALUKA MULSHI, DISTRICT PUNE.
THE ABOVE SAID BUILDING LAYOUT PLAN IS APPROVED BY PUNE
METROPOLITAN REGIONAL DEVELOPMENT AUTHORITY, PUNE OFFICE VIDE
LETTER NO. BMU/R.NO. 744/19-20/MOUJE MAHALUNGE/S.NO./G.NO./CTS
NO.12/ 3 & OTHER, DATED: 25/11/2019.
A) PLOT AREA STATEMENT OF SOCIETY.
i. Plot area as per 7/12 Extract. 63920.00 Sq.m.
ii. Plot area as per Sanctioned plan. 63840.59 Sq.m.
iii. De duction of Existing 9.00 M. Wide Road. 725.89 Sq.m.
iv. Balance Plot Area. 63114.70 Sq.m.
v. Deduction of Area under Road Widening.
(617.79 + 1662.32+462.37 sq.m.) 2280.11 Sq.m.
vi. Balance Area of the Plot. (63114.70 Sq.m.-2280.11 Sq.m.) 60834.59 Sq.m.
vii. Deduction for Area under Amenity Space. 9474.00 Sq.m.
viii. Deduction of Area under Internal Road. 6127.68 Sq.m.
ix. Net Balance Area of the Plot. 45232.91 Sq m
x. Deduction of Area under Open Space. 6083.46 Sq.m.
xi. Balance Area of the Plot. 39149.45 Sq.m.
xii. Permissible Net Area as per Rera Plan 46224.53 Sq.m.
xiii. Total Permissible F.S.I.as per Sanctioned Plan.
(As Per PRO RATA BASIS) 67204.80 Sq.m.
xiv. Total Proposed F.S.I. as per Sanctioned Plan. 67142.22 Sq.m.
xv. Total Proposed F.S.I. of Building B1 To B4 (14034.90 Sq.m.) 14034.88 Sq.m.
xvi. If there are more than one societies on the same
sanctioned plan, then Proportionate area to be conveyed to
society including Open Space.
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14034.88
_________________
x 46224.53 9662.41 Sq.m.
67142.22
B) F.S.I. Statement. (Building B1 Tο Β4)
i. Allowable FSI and area in Sq m as per sanctioned plan. 14034.88 Sq.m.
ii. Consumed FSI and area in Sq.m as per sanctioned plan. 14034.88 Sq.m.
iii. Balance FSI. 00.00 Sq.m.
C) Tenements Statement. (Building B1 To B4)
i. Tenements as per sanctioned plan 188 Flats
ii. Tenements at actual. 188 Flats
iii. Tenements as per completion certificate.
NOTE : There is no Buildable FSI to be consumed."
15. From the Architect's certificate there is no clarity as to the
manner of calculation of proportionate area of 9662.41 square meters
to be conveyed to the Respondent No.1-Society. Clause (xvi) of the
area statement refers to proportionate area to be conveyed to society
inclusive of open space, without there being any mention of the area
of open space or club house. The certificate considers the proposed
FSI of Respondent No.1-Society and divides the proposed FSI by the
proposed FSI as per the sanctioned plan and multiplies the result with
the permissible net area as per RERA plan. There is no mention of
RERA plan in any material on record and what has been relied upon is
the sanctioned plan in the impugned order. The certificate refers to
the proposed FSI of Respondent No.1-Society whereas what was
required to be considered is the FSI which was necessary to sustain
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the constructed built up area as per the GR dated 22nd June, 2018.
16. To simplify the procedure in respect of grant of deemed
conveyance and certificate, the Government of Maharashtra has
issued Government Resolution dated 22 nd June 2018. Sub-clauses (1),
(3) and (4) of Clause 2(B) of the said Resolution read thus :
"1) If there are many buildings on one plot and
have a separate co-operative society of each building and if
construction of some of them is incomplete then while
making Deemed Conveyance of completed building,
undivided share of occupancy right in the proportion of
construction on the proportionate area of the construction of
the building of such society or ground coverage or plinth area,
similarly open space, common services and facilities, roads
should be given."
"3) If there is more than one society in one
layout and out of them only one society has made such
application, similarly other societies are not co-operating for
conducting measurement of the land of the applicant society
then the District Dy. Registrar, Co-operative Societies, and
Competent Authority shall suggest the applicant society to
conduct the measurement according to the approved plan
from the Architect on the panel of the Competent Authority
who approved the construction plans of the concerned
society and submit the report regarding area of the society.
4) If the developer did not completed the project in
expectation of getting additional FSI or TDR in urban area,
then in such cases, deemed conveyance of the number of flats
proposed as per approved construction plan and that much
flats are constructed then their deemed conveyance should
be made."
17. The guidelines specifically deal with the situation where there
are many buildings on one plot and have separate co-operative
Societies and when the construction of some of them is incomplete.
The purport is to grant conveyance of the land required to sustain the
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constructed structure along with the proportionate area in common
amenities. Apart from the Respondent No.1-Society, the layout
admittedly consists of other independent Societies. The guidelines
prescribe that in event there is more than one society and other
societies are not co-operating for conducting the measurement of
land of applicant society, then the Competent Authority can get the
measurements carried out from an architect on the panel of
Competent Authority and can get the report submitted regarding the
area of applicant society. The impugned order indicates that the
Competent Authority has accepted the Architect's Certificate without
ascertaining the area which is required to be conveyed to sustain the
actual constructed area of the Respondent No.1-Society.
18. The Competent Authority was bound under the guidelines of
22nd June, 2018 to carry out the exercise to ascertain the land required
to sustain the constructed structure of the Respondent No.1-Society
and thereafter convey the land and building accordingly.
19. In the absence of any contest to the proceedings, the
Competent Authority has accepted the Architect's Certificate and
conveyed area of 9662.41 square meters. The Competent Authority is
required to comply with the obligations of Promoter and to convey its
right, title and interest in accordance with the Flat Purchaser's
agreement. Clause No.14 (a) of the Flat Purchaser's agreement
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provides for the transfer to the apex body, the ownership of all the
common areas, garden, open spaces etc. and equipments in the said
complex project presently, known as Aldea Espanola. Clause No. 14(c)
reads thus:
"14(c) The Promoter/Developer hereby gives express notice
to the Purchaser that some of the common areas and external
facilities described in Part "B" of the Fourth Schedule
hereunder written may be put up' provided by the Promoter
Developer on the said Property or on any of the plots
adjoining and' or being in the vicinity of the said Property OR
by the developer's of any of the plots adjoining and/or being
in the vicinity of the said Property on such other properties
and the Promoter Developer may enter into an agreement
with such other developer's for all such common areas and
external facilities being used by the occupiers of the Flats
Shops/Offices in the building/s standing not only on the said
Property but even on such other plot/s. The Purchaser hereby
expressly agree's not to raise any objection of whatsoever
nature to any of the arrangement's that may be arrived at in
this behalf by the Promoter/Developer with any other
developer/s."
20. The decision in the case of ACME Enterprises (supra) relied
upon by the learned counsel for the Respondent No.1 does not deal
with the situation where the open space and the common amenity
have been conveyed to the flat purchasers. In that context, in the
case of Mazda Construction Company vs Sultanabad Darshan CHS
Ltd2 this Court held in facts of that case that there was a serious
dispute as to whether the area referred to as garden and access are
forming part of the entitlement of the occupants and residents of
buildings of one plot or sub-plot. The learned Single Judge held that
2 2011 (5) Bom. C.R. 249.
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if it is styled and termed as common amenities, but the claims are
contested, then the Competent Authority should not have included
that portion in the area forming part of the deemed conveyance and
observed in paragraph 22 and 23 as under:
"22. In the instant case, there is a serious dispute as to whether
the areas referred to as "garden" and "access" are forming part of
the entitlement of the occupants and residents of the building on
one plot or sub-plot. If it is styled and termed as common
amenities, but the claims are contested, then, all the more the
Competent Authority should not have included that portion in the
area forming part of the deemed conveyance. The Competent
Authority should have been aware that what the Respondent No.1-
Applicants are entitled to have a certificate for enforcing unilateral
execution of conveyance deed conveying the right, title and
interest of the Promoter in the land and building in their favour.
The word "unilateral" has some definite significance. Once a
unilateral deemed conveyance is enforced by the Competent
Authority, then, all the more when litigation is pending to which
both are parties, the areas styled as garden and open access should
not have been included in the order and the certificate issued by
the Competent Authority. Their inclusion has thus vitiated the
order of the Competent Authority. There is substance in the
contentions and complaint of Mr. Samdani that the Competent
Authority has, in this case, traveled far beyond the documents
which were placed before it and once the interpretation and
construction of which was in serious dispute. If the parties were not
ad-idem or in any event the entitlement could not have been
determined and decided even in terms of the documents produced
before the Competent Authority, then, the areas which are now
included and which on the showing of the Competent Authority
have been termed as proportionate could not have been included.
Their inclusion demonstrates that there is a clear error of law
apparent on the face of record and a perversity in the impugned
order.
23. I have reproduced the order and certificate only with
this intent because what it grants is an unilateral conveyance
executed as deemed conveyance of the land admeasuring 432.30
square meters of CTS No.356/16 which is the area occupied by the
building and land beneath the said building and in which the
Respondent Nos.1 and 2 and their members are occupying the flats.
However, the reference to the proportionate area of garden
admeasuring 109.10 sq.mtrs. of sub-divided plot bearing CTS
No.356/13 and proportionate area of access road admeasuring 150
sq.mtrs. of 30 feet wide of sub-divided plot bearing CTS No.356/4,
itself would indicate that these plots are garden and roads. They
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are parts of the larger piece of land. However, they have not been
indicated, identified and demarcated in proportion in any
documents. The term "in proportion with" referred to in the order
and certificate is vague. Therefore, this by itself will give rise to
litigation between the Respondents inter-se. There would be
disputes and differences, as to which portion will be occupied or
enjoyed by which building and which residents or occupants. All this
is not intended by the Legislature while amending the MOFA by
Maharashtra Act No.4/2008. Similarly, proportionate area of access
road itself would indicate that it is a road admeasuring 150 sq.mtrs.,
but proportionate area thereof would mean a enjoyment along
with others so as to approach and access flats and buildings on
which the Respondent No.1 Society's construction exists. However,
if such of these areas do not form a part of the particulars or are
not disclosed in the plans or approvals, then, that by itself is a
serious dispute. I have referred to all this in detail only because
when there is a suit pending in a court of law with regard to the
entitlement of the parties, then, all the more the Competent
Authority ought not to undertake the exercise by which they
overreach the jurisdiction, authority and powers of competent
courts and tribunals."
21. The Competent Authority did not have the benefit of
considering the rival contentions of the Petitioners based on the
various clauses of the flat purchasers agreement. There was no
contest to the Architect's Certificate which has been accepted by the
Competent Authority without any reason or findings to substantiate
the grant of deemed certificate in respect of area admeasuring
9662.41 square meters. Considering the peculiar facts of the present
case, in my view, the remit to the Competent Authority is necessitated
for deciding the matter afresh after giving an opportunity to both the
parties to place relevant material on record.
22. In light of the above, the Petition is allowed and following order
is passed:
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: ORDER :
(a) The impugned order dated 8th December, 2020 is hereby
quashed and set aside.
(b) The Deemed Conveyance Application No.135 of 2020 is
remanded to the Competent Authority to be considered afresh
only to the extent of land which is to be conveyed to the
Respondent No. 1- Society in accordance with the flat
purchaser's agreement and GR of 22nd June, 2018.
(c) Petitioner as well as the Respondent No.1 are at liberty to
place on record additional material including Architect's
certificate to denote the area required to be conveyed to the
Respondent No.1-Society.
(d) All rights and contentions of both parties are expressly
kept open.
(e) The Competent Authority to decide the matter afresh,
uninfluenced by the observations in the impugned order dated
8th December, 2020.
23. Rule is made absolute in above terms.
[Sharmila U. Deshmukh, J.]
24. At this stage, request is made for stay of this judgment. The
judgment is stayed for the period of six weeks from today.
[Sharmila U. Deshmukh, J.]
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Signed by: Sachin R. Patil
Designation: PS To Honourable Judge
Date: 11/11/2024 18:07:23
