Bombay High Court
Allarkha Ismail vs The State Of Maharashtra And 7 Ors on 11 August, 2023
Author: R.N.Laddha
Bench: G.S.Kulkarni, R.N.Laddha
2023:BHC-OS:8402-DB
Chitra Sonawane WP-635-2023.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.635 OF 2023
Allarkha Ismail
Age 72 years, Occ.Retired,
residing at Allarkha Ismail Chawl,
Shradhanand Road, Vile Parle(East)
Mumbai-4000 57.
through Constituted Attorney
Abdul Rauf Barudgar ... Petitioner
Vs.
1.The State of Maharashtra
through its Principal Secretary
Urban Development Department,
Mantralaya, Mumbai-400032
2.The Municipal Commissioner,
Brihan Mumbai Municipal
Corporation, Greater Mumbai
Mahapalika Marg, Fort,
Mumbai-400001.
3. The Deputy Chief Engineer
Building Proposal, Western Suburb-1
MCGM, Hindu Hridaysamrat Shri
Balasaheb Thackarey Market,
Opp. J.V.L.R. Road, Poonam Nagar
Jogeshwari(East),
Mumbai-400093.
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4.The Superintendent of Land Records,
having his office at 10th floor,
Administrative Building, Near
Chetna College, Government Colony
Bandra (East), Mumbai-400051.
5.The City Survey Officer,
S.V.Road, Opp.Santacruz Bus Depot
BMC Garage Compound,
Santacruz (West), Mumbai-400054.
6. District Deputy Registrar,
Co-operative Societies, Mumbai City
No.3, Room No.69, Mhada Building,
Ground floor, Bandra (East),
Mumbai-400051.
7. Vardhan Apartments CHS Ltd.,
having its registered office at
Nanda Patkar Road, Vile Parle (E)
Mumbai-400057
through its Chairman.
8. Sanjay Sampatkumar Jain,
age-52, occupation Builder,
Yashriddhi Builders,
1, Saurabh Building, Andheri-Kurla
Road, Chakala, Andheri (East),
Mumbai-400093. ... Respondents
.....
Mr S. G. Kudle, for the Petitioner.
Mr Hemant Haryan AGP for State.
Ms Pooja Yadav for MCGM.
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Mr Pravin K Samdani, Senior Advocate a/w Nirav Karia i/b Bhavin
Bhatia for Respondent No.7.
Mr Amogh Singh a/w Mr Summet Pandey Ms Krutisha Pandey and
Mr Nirav Karia i/b Bhavin Bhatia for Respondent No.8.
Coram : G.S.Kulkarni &
R.N.Laddha, JJ.
Reserved on : 20 April 2023.
Pronounced on : 11 August 2023.
Judgment ( Per R.N.Laddha, J.) Rule. Rule made returnable forthwith. Respondents waive service. At the instance and request of the learned Counsel for the parties, heard finally.
2. This petition has been filed by the Petitioner, who claims that the Final Plot No.190 situated at Nanda Patkar Road, Vile Parle (East),Mumbai, was allotted to him on account of having acquired earlier plot bearing CTS No.1582 (1 and 2), Survey No.117, Hissa No.24, admeasuring 606 sq.yds. at Shradhhanand Road, Vile Parle (East) Mumbai, which he had purchased from Mr Bhagat Singh Shankarbhai Solanki by registered Sale Deed dated 30.09.1985. The Petitioner is seeking the following reliefs by this petition.
Page No. 3 of 22____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx "(a) Rule be issued. Records and proceedings of this case be called for.
(a-1) That this Hon'ble Court be pleased to quash and set aside the deemed conveyance duly executed by the respondent No.6 herein dated 23.11.2023 thereby holding that respondents No. 7 and 8 herein do not have any authority in law to carry out any further work of re-development in respect of Final Plot No.190 of TPS No.V, Nanda Patkar Road, Vile Parle (East), Mumbai-400057 on account of having allotted the said plot to the Applicant herein in view of having acquired Applicant's Original Plot No.1582 (1 and 2) admeasuring about 606 sq.yds., situated at Shradhhanand Road, Vile Parle (East), Mumbai- 400057 for road widening.
(a-2) This Hon'ble Court be pleased to declare that Respondent No.6 herein has exercised his power arbitrarily and without rule of law and accordingly necessary action be initiated against the said respondent and he be directed to make the payment of compensation to the Applicant herein for having caused untoward suffering by way of executing so called deemed conveyance dated 23.11.2021.
(b) This Hon'ble Court be pleased to issue the writ of Certiorari, order directions or any other directions or appropriate writ in the nature of Certiorari calling for records and proceedings in respect of Final Plot No.190 in respect of which work of redevelopment is being carried out by the Respondent Nos.7 and 8 in connivance with the Respondents herein after perusing the legality, propriety and correctness of the entire decision in question taken by the respondents herein by way of executing the deed of deemed conveyance and granting permission for carrying out the redevelopment work by the respondent nos.7 and 8 herein having a regard to the entire matter, this Hon'ble Court be pleased to declare that the respondents No.7 and 8 herein are not authorised persons to carry out any work of a construction on the land of the Final Plot No.190 under any guise thereby encroaching upon the rights of the petitioner as enshrined under Article 300 A of the Constitution of India and the said construction in question if Page No. 4 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx any, carried out during the course of the time be declared as unauthorised construction thereby demolishing the same so that in the near future petitioner will be entitled to carry out further work of construction, if warranted.
(c) Pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to issue an order of mandatory injunction directing the respondents herein not to take any coercive steps thereby encroaching upon the petitioner's right to property insofar as Final Plot No. 190 is concerned and this Hon'ble Court further be pleased to issue necessary directions to the Respondents herein to hand over the physical possession of the final plot No.190 forthwith;
(d) Any other equitable and suitable order be kindly passed in favour of the petitioner only;
(e) This petition be allowed with costs."
(sic)
3. The Petitioner claims to have purchased a plot of land located in Vile Parle (East),Mumbai, with Final Plot (FP) No.190. According to the Petitioner, the land was bought through a Deed of Conveyance on 30.09.1985 and is identified as CTS No.1582(1, 2 and 3), Survey No.117, Hissa No.24, admeasuring 606 sq.yds. on Shradhanand Road, Vile Parle (East), Mumbai. At the time of purchase, the land was standing in the name of Bhagat Singh Shankarbhai Solanki and was also recorded in the 7/12 extract.
4. The Petitioner claims that after the transfer of the land in Page No. 5 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx question by a registered sale deed, his name was recorded in index II, replacing the name of the original vendor. However, it was not until 29.04.2022 that his name was mutated in the property card. The Petitioner contends that his land was acquired by the Town Planning Department for road widening and that he was subsequently allotted Final Plot No.190 in lieu of Old Plot No.261 and 262.
5. According to the Petitioner as the landowner, he has the right to undertake redevelopment work on his property. It is a grievance of the Petitioner that Respondent No.7 created forged documents to obtain a registration certificate and was not authorised to carry out redevelopment work on his plot. He also takes issue with the order passed by Respondent No.6 without his knowledge.
6. Based upon the aforesaid contentions, Mr Kudle urged that the rule in this petition may be made absolute.
7. Mr Hemant Haryan, learned AGP for the State, Ms Pooja Yadav for MCGM, Mr Pravin K Samdani, learned Senior Counsel for Respondent No.7 and Mr Amogh Singh, appearing on behalf of Respondent No.8. With the assistance of the learned counsel for the parties we have perused the material on record including the Page No. 6 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx pleadings in the form of affidavits in reply filed on behalf of Respondents No. 3, 5, 6, 7 and 8 and rejoinders to the replies of Respondents No.3, 6 and 7 by the Petitioner.
8. Mr S.G. Kudle, the learned Counsel appearing on behalf of the Petitioner, expressed concern that although FP No.190 was allotted to the Petitioner, he never received physical possession of the plot. He submitted that FP No.190 was allotted to the Petitioner after his land was acquired. However, Respondent No.7 prepared forged documents to obtain a registration certificate for CTS No.1602, Survey No.117, Hissa No.24, Final Plot No.190. Since CTS No.1602 was mentioned and the CTS number shown for the deemed conveyance was 1582 and its parts, Respondents No.7 and 8 were not authorised to carry out redevelopment work on the plot allotted to the Petitioner.
9. The learned Counsel submitted that the Petitioner had made several attempts to notify the authorities to mutate his name in the property extract of CTS no.1582 and its part Final Plot No.190, which was allotted to him. Mr Kudle submitted that by an application dated 10.06.2022, the Petitioner made a grievance to Respondent No.3 regarding unauthorised construction on his plot/ FP No.190. The Petitioner alleges that after discovering that his Page No. 7 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx name had been entered in the property extract, Respondent No.5, in collusion with Respondents No.7 and 8, sent a notice requesting permission to cancel the mutation entry, which was nothing more than an attempt to cancel the order of mutation. Respondent No.5, who granted the mutation entry in favour of the Petitioner, sent a communication on 21.06.2022 requesting permission from Respondent No.4. According to the Petitioner, this communication is beyond the scope of the law and violates the provisions of Section 258 of the Maharashtra Land Revenue Code.
10. Mr Kudle made a grievance to the order dated 08.02.2021 of Respondent No.6, Deputy Registrar of Cooperative Societies, approving the deemed conveyance on the ground that it was passed without the Petitioner's knowledge and the property number shown during the registration of the housing society was different from the one mentioned in the deemed conveyance, which specifically referred to CTS No.1582/1/2. He submitted that despite receiving notice, the unauthorised work was not halted, prompting the Petitioner to file this petition.
11. The learned Counsel for the Petitioner submitted that Respondent Society is not the owner of FP No.190 because it was allotted to the Petitioner on account of having acquired earlier plot Page No. 8 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx CTS No.1582/1/2, which was duly purchased from the original owner, Bhagat Singh Solanki, by a registered Sale Deed dated 30.9.1985. He pointed out that the document dated 22.10.1981, obtained under the Right to Information Act, was not placed on record by Respondents No.7 and 8 because it was a forged document.
12. According to the learned Counsel, while executing the deemed conveyance, Bhagat Singh Solanki's name was included in item No.4, but his signature and photo were not present on the document summary. He submitted that Respondent No.7 is uncertain about the existence of Bhagat Singh Solanki, and therefore, the correct facts have not been recorded.
13. Relying on the Judgments of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu (Dead) by LR's Vs. Jagannath (Dead) by LR's & Ors.1994 (1) SCC 1 and AV Papayya Sastri & Ors. Vs. Government of AP & Ors. 2007(4) SCC 221, the learned Counsel for the Petitioner submitted that failing to disclose relevant and material documents in order to gain an advantage constitutes fraud, and any order obtained by playing fraud is a nullity and non-est in the eye of the law. He claimed that Respondent No.7 used a forged conveyance to obtain permissions from the competent authorities Page No. 9 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx and began construction on the plot allotted to the Petitioner.
14. Ms Pooja Yadav, learned Counsel for Respondent Corporation, submitted that Mr Vivek Dattatraya Jade, on behalf of Respondent No.7, submitted a building plan proposal for the redevelopment of an existing structure on 4.12.2021. The IOD for the proposed building and the plinth CC was issued up to the top of the stilt. In response to a complaint received from the Petitioner, a clarification letter was sent to the licensed Surveyor and owner/developer/society on 30.06.2022, which was forwarded to the complainant/Petitioner. Subsequently, they issued a further CC on 19.09.2022, extended up to the 6th floor as per the approved plan dated 29.12.2021. It is submitted that an amended plan was issued on 12.10.2022, CC was re-endorsed up to the top of the 6 th floor, and full CC was extended up to the top of the 9 th floor as per the approved plan dated 12.10.2022. Furthermore, it was submitted that an undertaking was given by the Applicant that no adverse order had been passed by any Court while approving the plan or FCC.
15. Mr Hemant Haryan, learned AGP appearing on behalf of Respondents No.1, 4, 5 and 6 submitted that Respondent No.7 Page No. 10 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx filed an application u/s 11(3)(4) of the MOFA on 21.09.2020, along with the necessary documents. Respondent No.7 submitted an application for deemed conveyance and provided all required documents as per GR dated 22.6.2018. As a result, Respondent No.6's office issued a notice to the relevant parties. In accordance with MOFA's provisions, Respondent No.7 issued a public notice, but no one appeared before the authority to raise any objections. Resultantly, after hearing the Applicant's learned counsel and reviewing the documents, Respondent No.6 passed a detailed order on 21.01.2021.
16. It is submitted that on 20.6.2022, the Petitioner sent a letter to the office of Respondent No.6 along with property cards bearing CTS Nos.1582, 1582/1 and 1582/2, requesting that the deemed conveyance be cancelled. In response to this letter, Respondent No.6/authority informed the Petitioner that they do not have the power to cancel the order of deemed conveyance. Upon reviewing the property cards, it was discovered that the Petitioner's name was entered on 29.4.2022. After reviewing the property card annexed to respondent No.7's application dated 21.09.2020, Respondent No.6 found that Bhagat Singh Solanki's name was recorded as a land owner on the property card while passing the order dated 21.08.2021. According to Respondent No.6, in such Page No. 11 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx circumstances, the Petitioner is not entitled to an order quashing and setting aside the deemed conveyance executed by Respondent No.6's office. Accordingly, the learned AGP submitted that the order passed by Respondent No.6 on 21.08.2021 is in accordance with MOFA and its rules.
17. According to the learned AGP, the Petitioner bypassed the remedy available u/s 247 of the Maharashtra Land Revenue Code, 1966 to challenge the order dated 29.7.2022 and directly approached this Court under Article 226 of the Constitution of India. He submitted that the Petitioner filed a mutation application dated 5.1.2022 along with documents such as the certified copy of the conveyance deed and Index II with the office of Respondent No.5. After perusing this application and the documents, the application was allowed, and the Petitioner's name was mutated in the property card vide mutation entry no. 2011/29/04/2022.
18. The learned AGP submitted that the Chairman of Respondent No.7/Society informed Respondent No.5 that a deemed conveyance had been granted by Respondent No.6/authority. As a result, Respondent No.5's office forwarded the review proposal dated 21.6.2022 filed u/s 258 of the Maharashtra Land Revenue Code to the office of Respondent Page No. 12 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx No.4. On 22.6.2022, Respondent No.4 allowed the review proposal and as a result, Respondent No.5 issued a notice dated 27.6.2022 to the concerned parties. After granting the opportunity of hearing to all the parties and after scrutiny of the documents, Respondent No.5/authority passed a detailed reasoned order on 29.07.2022 that on the property card of CTS No.1582, 1582/1 and 1582/2, the mutation entry No.2011/2022 dated 29.4.2022, stand cancelled and the previous entry on the property card was restored.
19. It is submitted that Survey No.117, Hissa No.24 is later on numbered as CTS No.1582, 1582/1 and 1582/2 was shown in the enquiry register. According to the learned AGP, the competent authority under the provisions of MOFA cannot decide the issue of title in respect of the property, and it can only be decided by a Civil Court. According to him, the order granting deemed conveyance does not conclude the issue of right, title or interest in the immovable property. The Petitioner may file a substantive suit of title for appropriate reliefs. In his view, the Petitioner is not precluded from seeking adjudication of his rights in respect of an immovable property simply because an order of deemed conveyance has been passed by the competent authorities. All such contentions can be addressed in a properly instituted suit.
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20. In support of his contentions, he relied on the following cases; i) Mazda Construction Company & Ors. Vs. Sultanabad Darshan CHS Ltd. & Ors., 2013 (2) ALL MR 278 ; ii) Shimmering Heights CHS Ltd & Ors. Vs. State of Maharashtra & Ors., 2016 SCC OnLine Bom 4919; iii) M/s Shree Chintamani Builders Vs. State of Maharashtra & Ors., 2016 SCC OnLine Bom 9343; iv) Harhath Coop. Housing Society Ltd. Vs. M/s Malkani Enterprises & Ors., 2016(3) ALL MR 210; v) Angeline Randolph Pereira & Ors. Vs. Suyog Industrial Estate Premises Cooperative Society Ltd. Mumbai & Ors., 2018 (3) ABR 825; vi) Sukruti Apt. Coop. Housing Society Ltd. Vs. Tirumala Developers & Ors., 2022 (4) Mh.L.J. 394; vi) Mahanagar Housing Partnership Firm & Ors. Vs. District Deputy Registrar of Cooperative Societies (Pune City ), Pune & Ors., 2018 SCC OnLine Bom19563.
21. Mr Pravin Samdani, learned Senior Counsel appearing on behalf of Respondent No.7, submitted that FP No.190 was allocated around 1979-80 in exchange for original plot Nos. 261 and 262 of TP Scheme Vile Parle No.V. These OP Nos.261 and 262 were assigned with the respective CTS bearing Nos.1582, 1582/1 and 2, and 1583. On 30.08.1972, the Town Planning Scheme Arbitrator, as per the MRTP Act, sent a 'B' Form under the MRTP Act, informing him of the department's intention to Page No. 14 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx acquire OP Nos.261 and 262 requesting the production of documents.
22. According to the learned Senior Counsel, the Petitioner relinquished his rights in FP No.190 and acknowledged the construction of the building by a communication dated 10.02.1986. He submitted that this communication and alleged conveyance demonstrate falsehood since Mr Bhagat Singh passed away on 01.01.1979. It is claimed that despite Mr Bhagat Singh's death, the Petitioner obtain a fabricated deed in his favour.
23. It is submitted that on 24.02.1986, the Arbitrator sent a communication to the Petitioner, rejecting his claim. He was also advised to approach the BMC authority for his grievance. On 03.10.1986, the Petitioner sent a letter requesting a certified copy of plans for FP No.190 and attached an authority letter from the owner allegedly dated 5.10.1986, whereby the Petitioner attempted to convince the Arbitrator that Bharatkumar was still alive and had signed the purported authority letter in English while in the conveyance all signatures were in Gujrati with the name endorsed as Bhagat Singh Shankarbhai Solanki. In 1988-89, the Petitioner sent various communications attempting to challenge the construction of FP No.190, where the road was referred to as Page No. 15 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx Shradhanand Road, even though FP No.190 is located on Nanda Patkar Road. The Arbitrator suggested in a letter dated 28.6.1989 that the Petitioner approach MCGM for the referred matter.
24. It is submitted that on 07.05.1994, the Arbitrator sent a communication to the Executive Engineer, Building Proposal, requesting certain information, which was furnished by him in a letter dated 15.5.1994. It is submitted that one Kadam family claiming their occupancy rights in 1994 sought to avail benefits of FP and managed to incorporate their names in revenue records but such names were later deleted. Bharatkumar passed away intestate, leaving behind his son Sagar, widow Manjuben, and married daughters Chhaya, Neelam and Shruti. An agreement dated 27.11.1980 was made between these legal heirs of Bharatkumar, agreeing to transfer and convey said property to Mr Jawahar Doshi upon the terms and conditions recorded therein.
25. Mr Jawahar Doshi, representing firm M/s Radha Managal Builders, agreed to transfer and convey said property to Mr Babulal Vardhan, who, by an agreement dated 7.11.1981, agreed to transfer and convey said property to M/s Vardhan Associates upon terms and conditions recorded therein. Mr Jawahar Doshi, for himself and as constituted attorney of legal heirs, authorised and appointed Mr Prakashbhai Vardhan of M/s Vardhan Associates to perform Page No. 16 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx various acts and deeds necessary to obtain permissions, orders, approvals and sanctions for the development of the said property. M/s Radha Managal Builders was a partnership firm consisting of partners Jawahar Doshi and Navin K. Shah but was dissolved w.e.f. 01.06.1983. The MCGM-sanctioned plan submitted by Vardhan Associates, including building plans and commencement certificate for the development of the said property. Vardhan Associates then built a building called Vardhan Apartment, which has ground and four upper floors. From 1981 onwards, Vardhan Associates sold these flats and units to various buyers through different agreements.
26. It is submitted that all of the agreements referred to the property having FP No.190, Survey No. 117, and Hissa No.24, which was allocated in lieu of OP Nos.261 and 262 with CTS Nos.1582, 1582/1 and 1582/2, and 1583. The flats/unit buyers applied to Respondent No.6 to form a society with M/s Vardhman Associates as an opponent. The society authorised its member Mr Pravin Bhurabhai Nandu, to act as Chief Promoter on its behalf and perform all necessary actions. It is stated in the affidavit that Mr Pravin Nandu appears to have provided the property register card for CTS No.1602 instead of CTS No.1582 and its parts when Page No. 17 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx submitting such a request, amongst other things. It is claimed that this oversight can be seen in the release deed executed by Mr Pravin Nandu on 24.7.2013, where the PR Card for CTS No.1602 with FP No.190 is included in the property schedule and annexure, even though such a PR card is unrelated to Respondent No.7/Society's property.
27. Furthermore, it is claimed in the affidavit that the Deputy Registrar issued an order dated 21.5.2019 and a registration certificate dated 22.5.2019 based on this information, erroneously referencing City Survey No.1602 instead of correct CTS Nos.1582, 1582/1 and 1582/2. As a result, the housing society known as Vardhman Apartment Cooperative Housing Society was registered at Survey No. 117, Hissa No.24, FP No.190, TPS scheme, Nanda Patkar Road, Vile Parle(E), Mumbai. The owners of flats/units were admitted as members of this society and were issued share certificates accordingly. The Society filed an application for deemed conveyance of the property after the promoters failed to convey it to the society, and the conveyance deed was eventually registered on 23.11.2021.
28. The learned Senior Counsel submitted that a 30-year title search report was obtained during this process, but no record of the Page No. 18 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx Petitioner's purported deed was found anywhere in it. Additionally, even a cursory examination of the search for the year 1989 reveals a torn record where the Petitioner claims that his purported deed was registered.
29. The Society, after the demolition of the building on 18.2.2022, entered into a development agreement with Yashridhhi Builders/Respondent No.8. In accordance with the terms of the development agreement, the developer/ Respondent No.8 obtained all necessary permissions from MCGM, including IOD and also obtained DP remark based on FP No.190 along with Form-1 of TP scheme showing complete details of OP and FP co-related with city survey numbers and areas. The members of the society were informed by Respondent No.8, and as a result, they vacated their flats. The building was demolished, and a CC was obtained on 9.5.2022. A full CC for the top 9 floors was issued on 4.11.2022, as per the approved plan, and the entire RCC construction was completed.
30. The affidavits state that the Petitioner is not only challenging the validity of the construction that took place in 2022 and the order of deemed conveyance but also, under the guise of this challenge, is attempting to question the original construction that Page No. 19 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx began in 1981 and was completed in 1988. No explanation has been offered for the delay and laches. Respondent No.8/developer has already spent approximately Rs.8 Crores.
31. According to the learned Senior Counsel, issues concerning the right, title, and interest in immovable property cannot be examined in the writ jurisdiction. The order of deemed conveyance does not prevent the Petitioner from filing a suit and claiming appropriate relief. According to him, this Court cannot examine issues that are essentially disputed while examining the legality, correctness and validity of deemed conveyance in the writ jurisdiction. In support of his contentions, he relied on: i) Mrs.Angeline Reni Pereiera & Ors. Vs. M/s Pearl Heaven Cooperative Society Ltd. & Ors. in Writ Petition No.5083 of 2012
ii) Mazda Construction Company & Ors. Vs. Sultanabad Darshan CHS Ltd. & Ors. 2013 (2) ALL MR 278; iii) M/s Shree Chintamani Builders Vs. State of Maharashtra & Ors., 2016 SCC OnLine Bom 9343; iv) Angeline Randolph Pereira & Ors. Vs. Suyog Industrial Estate Premises Cooperative Society Ltd. Mumbai & Ors. 2018 (3) ABR 825; v) Mahanagar Housing Partnership Firm & Ors. Vs. District Deputy Registrar of Cooperative Societies (Pune City), Pune & Ors. 2018 SCC OnLine Bom19563; vi) Managala Madhusudan Sathaye Vs. E-Square Premises Page No. 20 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx Cooperative Housing Society Ltd. AIR OnLine 2021 Bom 2640;
vii)Pratibha Mahendra Shahv V. State of Maharashtra AIR OnLine 2021 Bom 5716 viii) Shimmering Heights CHS Ltd & Ors. Vs. State of Maharashtra & Ors. 2016 SCC OnLine Bom 4919.
32. The rival contentions now fall for our determination.
33. The record bears out that practically the RCC construction of the building on the disputed plot is complete, which is also not disputed by the Petitioner. The petition was instituted at a quite belated stage. The records also indicate that Respondents No.7 and 8 obtained necessary permissions from the relevant authorities to construct a building on the disputed plot. The petition raises several disputed factual questions that require investigation and enquiry, as the parties are challenging the genuineness of the documents relied upon by their opponents. Such disputed factual questions cannot ordinarily be gone into in the exercise of our summary and extraordinary jurisdiction under Article 226 of the Constitution of India.
34. As reiterated in a long line of decisions, including Mazda Constructions (supra), this Court would not examine issues that are essentially title disputes and complicated questions of entitlement Page No. 21 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 ::: Chitra Sonawane WP-635-2023.docx to further development rights under the guise of examining the legality, validity, and correctness of an order of deemed conveyance in the exercise of writ jurisdiction. The appropriate remedy for the aggrieved party is to file a substantive suit before the competent Civil Court. In our considered view, the facts of this case do not warrant a different approach as the disputed factual questions, involved in this petition would require investigation and enquiry since the parties are questioning the documents relied upon by their opponents.
35. The petition is accordingly dismissed. However, the Petitioner is at liberty to file a substantive suit, if he has not already, to claim his right to the disputed land and consequently challenge Respondent No.7's entitlement to the conveyance of that plot. If such a suit is filed or has already been filed, it be decided on its own merits and in accordance with the law without being influenced by any observations made herein above. As a result, the rule is discharged with this clarification. In the circumstances, there shall be no order as to cost. The interim application, if any, does not survive with the disposal of the writ petition and is accordingly disposed of.
[R.N.Laddha, J.] [G.S.Kulkarni, J.] Page No. 22 of 22 ____________________________________________ 11 August 2023 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 06:33:34 :::