Bombay High Court
Riddhi Siddhi Adarsh Swetamber Murti ... vs Malad Guru Krupa Co Op Housing Soc Ltd on 1 September, 2021
Author: M.S.Karnik
Bench: M.S.Karnik
26.wp.4296-21.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4296 OF 2021
RIDDHI SIDDHI ADARSH SWETAMBER
MURTI PUJAK JAIN SANGH & ORS. ..PETITIONERS
VS.
MALAD GURU KRUPA CO-OP. HSG.SOC.LTD.
& ORS. ..RESPONDENTS
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Mr. Mangal Bhandari a/w. Viraj Parikh i/b. Divya Sanghvi for the
petitioners.
Mr. Rubin Vakil i/b. Manan Sharma for the respondent No.1.
Mr. A.P. Vanarse, AGP for the State.
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CORAM : M.S.KARNIK, J.
DATE : SEPTEMBER 1, 2021
P.C.
The challenge in this Petition is to an order passed by the competent authority under the provisions of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as 'the MOFA' for short) rejecting the preliminary objection raised by the petitioners.
2. It is the petitioners' case that the Trust had purchased the land from the respondent Nos. 3 and 4 on 7/8/2003 in respect of an area admeasuring 422 sq.mtrs. The respondent Nos. 3 and 4 had entered into the Development Agreement dated 27/3/1978 with the Developer. Reliance is placed on the fat purchasers agreement dated 6/3/1979. It is the contention of learned counsel for the 1 Of 4
26.wp.4296-21.doc petitioner that the permission of the Charity Commissioner is required under Section 36(a) of the Maharashtra Public Trusts Act, 1950 before the conveyance is granted, and therefore in respect of granting conveyance beyond 422 sq.mtrs., it is not open for the competent authority to grant deemed conveyance without the permission of the Charity Commissioner.
3. The application made by the petitioner raising preliminary objection is rejected. Under Section 11 of the MOFA, deemed conveyance is granted on the basis of the fat purchasers agreement and the area to be conveyed is to be determined by the competent authority in accordance with the provisions of the MOFA. The proceedings are pending. Even the Charity Commissioner is party to the said proceedings.
4. The order impugned is passed at the interlocutory stage. I am informed that the competent authority has closed the matter for orders. In the event the fnal order granting deemed conveyance is made and if the petitioners are aggrieved, it is always open for the petitioners to challenge the order impugned in this Petition, along with the order granting deemed conveyance if adverse to the petitioners. In this view of the matter, I see no reason to stall the proceedings before the competent authority.
5. Learned counsel for the petitioners submit that the petitioners were not in a position to make their oral submissions 2 Of 4
26.wp.4296-21.doc before the competent authority on merits and the matter is now closed for orders. This Court by an order dated 16/6/2021 had directed the respondent No.5 not to pronounce fnal order in the proceedings. Accordingly, the respondent No.5 proceeded and reserved the matter for orders.
6. Learned counsel for the respondent No.1 has no objection if the petitioners are heard by the competent authority on merits with a view to avoid multiplicity of the proceedings. The competent authority therefore to give an opportunity of hearing to the petitioners as well as the respondent No.1 and to all concerned on merits and then pass appropriate orders.
7. Parties to appear before the competent authority on 21/9/2021, at 3.00 p.m.. The competent authority to hear the parties concerned and decide the application in accordance with law.
8. So far as the controversy in the present Petition, arguable questions are raised, hence Rule. Learned counsel Mr. Vakil waives service of rule on behalf of the respondent No.1. Learned AGP waives service of rule on the behalf of the State.
9. Interim relief is refused in view of the fndings recorded herein above.
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26.wp.4296-21.doc
10. All rights and contentions of the parties are kept open in the application before the Competent Authority. Digitally signed by DIKSHA DIKSHA DINESH DINESH RANE Date:
(M.S.KARNIK, J.) RANE 2021.09.04 17:30:32 +0530 4 Of 4