Bombay High Court
Sarika R. Bagve vs New Ashish Co-Operative Housing ... on 19 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:28745
901wp8528-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8528 OF 2021
Sarika R. Bagve ... Petitioner.
Versus
New Ashish Co-Operative Housing Society Ltd. ... Respondents.
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Mr. Mehul Shah, for the Petitioner.
Mr. Anilkumar Patil, for the Respondent No.1.
Mr. Sangramsinh Yadav, for Respondent Nos.2 to 9.
Ms. M.S. Bane, AGP for the Respondent-State.
Ms.Anjali Waghmare, Assistant Registrar under District Deputy Registrar (IV)
Co-op. Soc., Mumbai, present.
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Coram : Sharmila U. Deshmukh, J.
Date : July 19, 2024 P. C. :
1. By this Petition, the challenge is to the order dated 9 th November, 2020 passed by the Competent Authority under Section 11 (3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act,1963 (for short, MOFA) certifying that the Petitioner is entitled to execution of unilateral deemed conveyance in respect of area admeasuring 4095.20 sqr.mtrs. i.e. 3775.2 sqr.mtrs. of CTS No.1416/A and 320 sqr.mtrs. of CTS No.1420/C. FACTS OF THE CASE :
2. An Application came to be filed by the Respondent No.1-Society sa_mandawgad 1 of 7 901wp8528-21 under Section 11(3) of the MOFA stating that they are in possession of portion of the larger layout land admeasuring 3775.2 sqr.mtrs. of CTS No.1416/A and 320 sqr.mtrs. of CTS No.1420/C totally admeasuring 4095.2 sqr.mtrs. It was contended that there is non-compliance of the obligations of the promoter under the flat purchasers agreement and there is a failure to execute a deed of conveyance in favour of the Applicant. A copy of the Architect's Certificate was annexed to the said Application. As per the Architect's Certificate annexed at page Nos.213 and 214, the area statement shown is as under:
"TO WHOMSOEVER IT MAY CONCERN Ref.: Area Certificate for Existing Building known as "NEW ASHISH Co-op Hsg Society. Ltd" on Plot bearing CTS No 1416-A & 1420-C, Village Dahisar, off 13.40 mt wide Road; Dahisar (East), Mumbai - 400068.
THIS IS TO CERTIFY THAT as per OCC granted by Mumbai Municipal Corporation vide no CE/6545/BP(WS)/AR dated 18th Nov 1993 & Plan given by society dated 2 nd July 1993 submitted to BMC for abovementioned building Comprising of Ground + 4 Upper Floors, :-
The Area Statement ( Proforma 'A') is as under: -
1. Area of Plot = 4095.20 Sq.mts
2. Deductions For
a) Set Back Area = NIL
b) Proposed Road
c) Any Reservation Total (a+b+c) = NIL
3. Net Area of Plot (1-2) = 4095.20 Sq.mts
4. Deduction for
a) 15% R.G. = 614.28 Sq.mts
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b) Internal Roads = 543.79 Sq.mts
c) Total (a+b) = 1158.07 Sq.mts
5. Balance Area of Plot (3-4c) = 2937.13 Sq.mts
6. Additions for F.A.R. 2 (a) 100% 2 (b) 100% = NIL 2 (c) 100%
7. Total Area (5+6) = 2937.13 Sq.mts
8. F.A.R Permissible = ONE
9. Permissible Built Up Area (7 X 8) = 2937.13 Sq.mts
10. Existing Floor Area = NIL
11. Proposed Area = 2922.98 Sq.mts
12. Excess Balcony area taken in F.A.R. = 13.35 Sq.mts
13. Total Built Up Area Proposed = 2936.33 Sq.mts (10+11+12)
14. Balance Area = 0.80 Sq.mts
15. F.A.R. Consumed 13/3 = 0.72 13/7 = 0.99 As per above Area Statement (Proforma A) the Plot Area is 4095.20 Sq.mts.
Further, as per the Property Registered Card obtained for City Survey No 1416/A & 1420/C, Village Dahisar, Talka Borivali, Mumbai Suburban District, the total plot area is (3775.20 + 320.00) = 4095:20 Sq.mts.
Hence, as per P.R. Card, the total Plot Area applicable to the building under reference Known as "NEW ASHISH Co-op Hsg Society Ltd" is 4095.20 Sq.mts. (Four Thousand and Ninety Five point Two Zero Square Meters) Only."
3. The Competent Authority issued the notice to the Respondents therein and also published public notice and thereafter conducted the hearing. The impugned order notes that the Applicant-Society was 3 of 7 901wp8528-21 represented however the Opponents did not appear in the hearing and thus the Competent Authority after hearing the learned counsel for the Applicant-Society passed the impugned judgment. SUBMISSIONS:
4. Mr. Shah learned counsel appearing for the Petitioner would submit that in the Application seeking deemed conveyance, the site address of the Respondent No.8A i.e. the present Petitioner was stated and thus notice could not be served upon the Petitioner. He submits that while issuing notice for registration by the Sub-Registrar, the address was correctly noted at "Chhatrapati Shivaji Road No.4, Dahisar East, Bombay-68". He would further point out that the Applicant-Society is part of the larger layout and the Architect's Certificate would specifically show that while giving the area statement the area of the internal road admeasuring 543.79 sqr.mtrs. was specifically deducted. He submits that FSI in respect of the internal road has already been alienated in favour of third party and there could not be any deemed conveyance in respect of the internal road. He would further submit that under the development agreement, a total area of 3550 sqr.mtrs. was agreed to be developed and what has been granted by the Competent Authority is deemed conveyance of an area 4095.20 sqr.mtrs. He would further point out to the various clauses in the flat purchasers agreement and would submit that the schedule makes it clear that the area which was under
4 of 7 901wp8528-21 development was 3550 sqr.mtrs. which was given to two sub-
developers on which the present Society has been constructed. He submits that the Competent Authority is expected to convey the right, title and interest of the Promoter as per the flat purchasers agreement which showed an area of 3550 sqr.mtrs. He submits that as per the flat purchasers agreement, individual societies were required to be formed and the conveyance was to be executed in favour of the Apex Society. He submits that as the Petitioner was not duly served with the correct address relevant submissions could not have been pointed out to the Competent Authority and seeks remand.
5. Per contra, Mr.Patil, learned counsel for the Respondent No.1 would submit that the issue as regards the sale of the FSI in favour of the third party is the subject matter of civil suit filed by the third party against the present Petitioner. He submits that the Competent Authority has taken into consideration the Architect's Certificate and has thereafter granted unilateral deemed conveyance in respect of the correct area. He submits that subsequent thereto the Certificate of unilateral deemed conveyance have already been registered and thus the office of the Competent Authority has became functus officio.
6. Learned AGP would submit that in accordance with the provisions of the MOFA a public notice was issued in the newspaper and thus, there is a compliance of service upon the Respondent.
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7. Considered the submissions and perused the record.
8. It is not disputed by Mr. Patil that the Petitioner's address stated in the application under Section 11(3) of the MOFA was the site address. It is the same address at which notice was attempted to be served. The Petitioner's correct address was the one mentioned in the notice issued by Sub-Registrar before registration. It is therefore clear that there is no valid service of notice upon the Petitioner and thus the submissions which are raised before this Court to dispute the area conveyed could not be raised before the Competent Authority.
9. The Competent Authority considered that on the said land, there is only the Applicant Society constructed by utilizing complete FSI and thus, the Society is entitled to get the R. G. area and internal road. The Competent Authority failed to notice that the Application of the Society states that the Society is in possession of a portion of larger layout. The Competent Authority based on the area shown in the Architect's certificate has granted deemed conveyance of 4095 sqr.mtrs. Perusal of the Architect's certificate would indicate that while calculating the area of the plot, the internal road and 15% R.G. was deducted. What was required to be considered was the Promoter's right, title and interest as per the flat purchaser's agreement. If the agreement excluded the area of internal road, the same could not have been granted.
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10. To simplify the procedure in respect of grant of deemed conveyance certificate in respect of a Society situated in larger layout, Government has issued guidelines dated 22 nd June, 2018. The Competent Authority exercising powers under Section 5 of the MOFA is required to step in the shoes of the Promoter and convey his right, title and interest in the land and building as per the agreement. Considering the fact that the Petitioner was not served and thus, the relevant facts could not have been brought to the notice of the Competent Authority, it is necessary to remand the matter to the Competent Authority to be decided afresh after giving an opportunity of hearing to all the parties.
11. Parties are directed to appear before the Competent Authority on 9th August, 2024. On the said date, the Petitioner herein will file its reply with an advance copy thereof to the other-side. As the matter is remanded, the Competent Authority is requested to decide the same expeditiously and in any event within a period of three weeks thereafter.
12. Considering that the matter is remanded for consideration afresh, the consequential act of registration of unilateral deemed conveyance is also quashed and set aside.
13. Petition is allowed in the above terms.
[Sharmila U. Deshmukh, J.] 7 of 7 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 22/07/2024 19:28:20