Bombay High Court
Arunkumar H. Shah Huf Through Kart Mr. ... vs Avon Arcade Premises Co-Operative ... on 25 February, 2021
Equivalent citations: AIRONLINE 2021 BOM 2641
Author: M.S.Karnik
Bench: M.S.Karnik
18. wpst 95334-2020 - FINAL.doc
DDR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION ST.NO. 95334 OF 2020
ARUNKUMAR H. SHAH HUF THROUGH
KARTA MR. GAURANG A. SHAH .. PETITIONER
vs.
AVON ARCADE PREMISES CO-OPERATIVE
SOCIETY LIMITED & ORS. .. RESPONDENTS
------------------------
Mr. Nishant Sashidharan a/w. Nakul Jain & Ms. Gauri Joshi i/b.
Ganesh & Co. for the petitioner.
Mr. Ashish Kamat i/b. Abhijeet Marathe a/w. Ms. Nidhi Ram for
respondent No.1.
Mr. S.D. Rayrikar, AGP for State.
Mr. Sheroy M. Bodhanwalla a/w. Sakshi Sharma i/b. M.S.
Bodhanwalla & Co. Advocates and Solicitors for respondent
Nos.2(a) to 2(d) and 3(a) to 3(d).
------------------------
CORAM : M.S.KARNIK, J.
DATE : FEBRUARY 25, 2021
P.C.:-
Heard learned counsel for the petitioner.
2. The Petitioner challenges an order of deemed conveyance
passed by the competent authority under the provisions of the
The Maharashtra Ownership of Flats (Regulation of the
Promotion, Construction, Sale, Management and Transfer) Act,
1963 (hereinafter referred to as "the MOFA Act" for short).
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3. In brief it is the case of the petitioner that the land
admeasuring 2814.38 sq.mts. was owned by the partnership
frm. Pursuant to the dissolution of the partnership frm an area
of 903.06 sq.mts came to the share of the petitioner whereas an
area of 1911.32 sq.mts came to the share of the respondent No.4
frm.
4. Learned counsel for the petitioner invited my attention to
the agreement which is at page 50. He placed emphasis on
Clause 1 read with Clause 36 of the said agreement. In his
submission, the competent authority by granting deemed
conveyance has clearly travelled beyond the said agreement. He
submits that the deemed conveyance can be granted only as
regards the portion forming the part and parcel of the fat
purchase agreement or the sanctioned plan.
5. Relying on the Clauses 1, 36 and other Clauses of the
agreement, learned counsel for the petitioner submits that even
in the said agreement it has been clearly mentioned that the
developer owned the land admeasuring 1911.32 with structures
thereon. Clause 36 on which much emphasis is placed by the
learned counsel reads thus :
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"36. After the said Building and the Premises to be constructed
by the Developers and the several structures to be constructed
by the Developers on the said Property are completed and ready
for occupation and after the Society as aforesaid is registered
and only after all the premises in the said Building and the
additional construction in the said Building that may be
constructed on the said Property are sold and disposed of by
the Developers and after the Developers shall have received all
dues payable to them under the terms of the Agreements with
the Purchasers in the said Building and/or the Developer shall
execute a Conveyance in respect of the said Property in favour
of such Co-operative Society subject to the said Deed of Lease
dated 16th day of July, 1991 in respect of Arun's property in
favour of Arun Hiralal Shah H.U.F. and/or his nominee or
nominees as aforesaid. Until the execution of the Conveyance
the possession of the said Property in the said Building and the
Premises thereon shall be deemed to be of the Developers and
the Purchasers who shall have been given possession of the
premises sold to him/her/them shall be merely occupants
thereof."
6. It is thus the contention of learned counsel for the
petitioner that the competent authority has clearly transgressed
beyond what is provided for in the fat purchase agreement as
well as the sanctioned plan under which only the area of 1911.32
sq.mts. was available for the purpose of development.
7. Learned counsel for the petitioner in support of his
submissions relied upon the decision of this Court in the case of
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M/s. Sheth Enterprises & anr. vs. District Deputy Registrar
(2) Mumbai & ors.1. Relying on paragraph 6 of the said decision
learned counsel submits that this Court has clearly held that the
entitlement of the society of the fat purchasers to the deemed
conveyance would be in terms of the agreement entered into
between the parties i.e. the fat purchasers and the developer. He
contends that this would mean that the competent authority and
the District Deputy Registrar could not have travelled beyond the
fat purchase agreement and the sanctioned plan.
8. He also relied upon the decision of this Court in the case of
Tushar Jivram Chauhan and another vs. State of
Maharashtra and others2. Relying on paragraphs 18 and 19
learned counsel submits that the competent authority under
MOFA has limited scope and power to deal with and decide the
application of deemed conveyance and/or unilateral conveyance.
This Court considering the scheme of MOFA and specifcally
Sections 10 and 11 has held that all the parties are bound by the
agreement or contract before applying for conveyance and/or
deemed conveyance and/or unilateral conveyance of the agreed
property. Thus relying on these judgments learned counsel
submits that the competent authority was clearly in error in
1 2016 SCC OnLine Bom 4901
2 2015(4) Mh.L.J. 867.
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granting deemed conveyance in respect of the portion of land
admeasuring 903.06 which belongs to the petitioner.
9. Learned counsel for the respondents on the other hand has
relied upon the Clause 36 of the agreement and the fndings of
the competent authority. He argued in support of the order
passed by the competent authority. He further submitted that
considering the nature of the dispute the remedy for the
petitioner is to fle a suit before the Court of competent
jurisdiction.
10. Heard learned counsel.
11. Perusal of the Clause 36 reveals that the developer shall
execute a Conveyance in respect of the said Property in favour of
such Co-operative Society subject to the said Deed of Lease
dated 16th day of July, 1991 in respect of Arun's property
(petitioner's property) in favour of Arun Hiralal Shah H.U.F. and/or
his nominee or nominees as aforesaid. Even the fndings of the
competent authority in paragraph 5 reveals that the competent
authority has referred to the deed of dissolution whereby the said
property or part thereof was transferred contains a provision that
Mr. Lalbhai H. Shah shall make conveyance of the entire property
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in the name of Co-operative Society subject to Lease Rights of
Mr. Arunkumar H. Shah in respect of the portion which was
allotted to Mr. Arunkumar H. Shah.
12. Learned counsel for the petitioner vehemently urged that
"the said property" would mean the property described in the
development agreement viz. 1911.32. sq. mts. There is dispute
as regards what the term "said property" means for according to
learned counsel for the respondent No.1, the said property
means entire area including 903.06 sq.mts. subject to the lease
rights of the petitioner.
13. Considering the nature of the dispute, in my opinion, it is
not possible for me to decide the legality and correctness so also
validity of deemed conveyance in this Petition. It has been held in
the case of Mazda Construction Company & Others Vs.
Sultanabad Darshan CHS Ltd. & Others 3 that order granting
deemed conveyance will not conclude the issue of right, title and
interest in the immovable property. The deemed conveyance
does not preclude or prevent the petitioner from fling a suit and
claiming therein appropriate reliefs.
3 2013 (2) ALL MR 278
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14. This Court in the case of Angeline Randolph Pareira &
Ors. Vs. Suyog Industrial Estate Premises Co-operative
Society Ltd. & ors.4 has observed in paragraph 23 as under :-
"23. It is made clear that if any civil suit is fled by the petitioners
for adjudication of title in respect of the property in question, the
said suit can be independently decided without being infuenced
by the fact that an order of deemed conveyance passed by the
competent authority or that the certifcate of title of the property
is issued by the competent authority in favour of the respondent
no.1 in respect of the property in question."
15. In view of the law laid down by this Court in the case of
Mazda Construction Company & Others and Angeline
Randolph Pareira & Ors. (supra), I decline to interfere with the
order passed by the competent authority. I therefore pass the
following order :
ORDER
1. The petitioner would be at liberty to fle a substantive suit for adjudication of right, title and interest in respect of the property in question. The same can be decided independently without being infuenced by the fact that an order of deemed conveyance of the property in question is passed by the competent authority and the certifcate of title of the property is issued by the competent authority under Section 11(5) of the MOFA. 4 2018 (6) ALL MR 729 7/8
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16. All contentions in this regard are kept open.
17. The Petition is rejected.
18. Learned counsel for the petitioner requested for continuation of the interim order which is in operation. Learned counsel for the respondent No.1 - society opposed the request. Digitally signed by Diksha Diksha
19. In the interest of justice, I am inclined to continue the Rane Rane Date:
2021.02.26 18:34:44 +0530 interim order which is granted earlier for a period of four weeks from today.
(M.S.KARNIK, J.) 8/8