Bombay High Court
Smt. Girija Sundar Patil And Anr vs Chairman / Secretary, Raghunath Co-Op. ... on 4 October, 2022
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
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 1/7 1-wpst-20742-2014.doc Sonali 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. 2/7
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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 3/7 1-wpst-20742-2014.doc Sonali 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 4/7 1-wpst-20742-2014.doc Sonali 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 5/7 1-wpst-20742-2014.doc Sonali 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. 6/7
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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.
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