Bombay High Court
Rajesh Construction Compnay Pvt Ltd vs The District Deputy Registrar ... on 22 January, 2019
Author: G.S. Patel
Bench: G.S. Patel
901-902-WP180-18+.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 180 OF 2018
Marathon Era Coop Hsg Soc Ltd ...Petitioner
Versus
The Competent Authority & District Dy ...Respondent
Registrar Coop. Societies, Mumbai WRIT PETITION NO. 2590 OF 2016 AND WRIT PETITION NO. 2591 OF 2016 Rajesh Construction Co Pvt Ltd ...Petitioner Versus The District Deputy Registrar & Ors ...Respondents WRIT PETITION NO. 2453 OF 2018 BK Corporation ...Petitioner Versus State of Maharashtra & Ors ...Respondents CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 295 OF 2015 Gulmohar Lokmilan Coop Hsg Soc Ltd & Anr ...Petitioners Versus The Competent Authority & Ors ...Respondents Mr Pravin Samdani, Senior Advocate, with JP Sen, Senior Advocate, SB Pawar & Swati Sawant, i/b SK Legal Associates, for the Petitioner in WP/2453/2018.
Page 1 of 422nd January 2019 ::: Uploaded on - 23/01/2019 ::: Downloaded on - 24/01/2019 01:32:52 ::: 901-902-WP180-18+.DOC Mr DJ Khambata, Senior Advocate, with CS Balsara, Ali Antulay, NH Vakil & Suzan Vakil, i/b Mulla & Mulla & CBC, for the Petitioner in WP/180/2018.
Mr Piyush Raheja, with Ankita Savani, i/b RVJ Associates, for the Petitioners in WP/295/2015.
Mr Vishal Kanade, with Priyanka Desai, i/b Khaitan & Co., for the Petitioner in WPS/2590/ & 2591/2016.
Mr Manish Upadhyay, AGP, for Respondents Nos. 1, 2 & 10 - State in WP/2453/2018.
Mr Saket Mone, with Vishesh Kalra & Subit Chakrabarti, i/b Vidhii Partners, for Respondent No. 3 in WP/2453/2018. Mr Pravin Samdani, Senior Advocate, with Bindi Dave, Raghor Gupta & Kashish Mainkar, i/b Wadia Ghandy & Co., for Respondents Nos. 2 & 3 in WP/180/2018.
Mr BM Chatterjee, Senior Advocate, with Pooja Yadav, for MCGM in WP/180/2018.
Mr Vivek Kantawala, with Amey Patil, & Shanay Bafna, i/b M/s.
Vivek Kantawala & Co., for Respondent No. 5 in WP/180/2018. Mr Raymond Samuel, i/b PS Nadar, for Respondents Nos. 2, 3 & 4 in WP/295/2015.
Mr YD Patil, AGP for Respondent No. 1 - State in WP/295/2015. Mr Kedar Dighe, AGP for Respondents Nos. 1 & 2 - State in WP/2590/2016.
Mr Manish Upadhyay, AGP for Respondents Nos. 1 & 2 - State in WP/2591/2016.
CORAM: G.S. PATEL, J
DATED: 22nd January 2019
PC:-
1. I have heard Mr Khambata for the Petitioner in WP/180/2018 and Mr Samdani for the Petitioner in WP/2453/2018, learned Senior Advocates at length on the question of interpretation of the relevant statutes, i.e., the Maharashtra Ownership Flats Act 1963 ("MOFA"), the intervening Page 2 of 4 22nd January 2019 ::: Uploaded on - 23/01/2019 ::: Downloaded on - 24/01/2019 01:32:52 ::: 901-902-WP180-18+.DOC Maharashtra Housing (Regulation on Development) Act 2014 ("MHRDA") and, most recently, the Real Estate (Regulation and Development) Act 2016 ("RERA"), and with their assistance considered the relevant provisions including all the Rules and the authorities.
2. There are three other Writ Petitions. Writ Petition No. 2453 of 2016 is one in which a unilateral deemed conveyance of the building and a part of the land was granted and even while the Petition filed by the developer was pending the conveyance was got registered. I passed an interim order directing the cancellation of that conveyance registration. This was taken to the Supreme Court and notice was issued on that SLP. The order of the Supreme Court passed on 18th May 2018 makes it clear that the registration (obviously of the conveyance) would be 'subject to the final result of the Petition'. Before me today, both sides seem to be agreed that this means that the conveyance registration is subject to the outcome of this Writ Petition. I will hear both sides on the factual aspects of the matter, having completed the hearing on the statutory interpretation aspect. List Writ Petition No. 2453 of 2016 on 24th January 2019 at 11.00 am.
3. Writ Petition No. 2590 of 2016 is filed by one Rajesh Construction Co Pvt Ltd. It has two aspects to it. The first is the correctness of an order permitting formation of what I can only call breakaway societies, i.e., societies formed of two of several wings of what is otherwise a single building. This is quite distinct from an interpretation of Section 11 of the MOFA and it seems to be common ground that no application under Section 11 has yet been Page 3 of 4 22nd January 2019 ::: Uploaded on - 23/01/2019 ::: Downloaded on - 24/01/2019 01:32:52 ::: 901-902-WP180-18+.DOC made. The apprehension is that if the various wings in the building are allowed to be balkanized, with each forming its own society rather than there being one society for the entire building, there will be multiple applications for unilateral deemed conveyance. The two questions are distinct. All these matters were clubbed and placed before me and have remained part-heard only on the question of an interpretation of Section 11 of MoFA in the context of a layout development. This matter may, therefore, need separate directions even as to listing for admission on the question that arises under Section 10 of the MOFA. List Writ Petition No. 2590 of 2016 for admission and orders on 24th January 2019 at 3.00 pm
4. Civil Writ Petition No. 295 of 2015 is filed by a society represented by Mr Raheja. His case is that he has been excluded from a unilateral deemed conveyance obtained by Respondents Nos. 2, 3 and 4 who, between them, seem to have taken up virtually everything of significance in the lay-out including the Petitioners' claimed RG space and even, according to Mr Raheja, some plot that has already been handed over to the Municipal Corporation for Greater Mumbai. This is squarely a Section 11 of the MOFA case and will be covered by the ultimate decision on the interpretation of Section 11.
5. Not all of the Respondents are present today. List the matter along with other matters on 24th January 2019 at 3.00 pm. (G. S. PATEL, J) Page 4 of 4 22nd January 2019 ::: Uploaded on - 23/01/2019 ::: Downloaded on - 24/01/2019 01:32:52 :::