Bombay High Court
Janak Chimanlal Thacker And Ors vs Prathmesh Tower Premises Co Op Soc Ltd ... on 15 September, 2021
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
This Order is modified/corrected by Speaking to Minutes Order dated 05/10/2021
9.WP2314_2021.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2314 OF 2021
Janak Chimanlal Thacker & Ors. ... Petitioners
V/s.
Prathmesh Tower Premises Coop Soc. Ltd. & Ors. ... Respondents
Mr. Y.S. Jahagirdar, Senior Advocate a/w. Mr. Aditya Thakker, Mr. J.N.
Mistry, Ms. Vijaya Rao and Ms. Avan Ardeshir i/b. Mulla & Mulla &
Craigie Blunt & Caroe for the petitioners.
Mr. J.S. Kini a/w. Ms. Sapna Krishnappa i/b. Mr. Naresh Pai for
respondent no. 1.
CORAM : G.S.KULKARNI, J.
DATE : 15 September, 2021.
P.C.:
This petition was heard on 8 September, 2021. The challenge in
this petition is to an order dated 25 March, 2021 passed by the
Competent Authority granting unilateral deemed conveyance in favour
of respondent no. 1, as more specifically set out in the Certificate of
Deemed Conveyance in respect of Survey no. 1/2728/2727, C.S. No.
107 Tulsi Pipe Road, Senapati Bapat Marg, Lower Parel, Mumbai - 400
013 for land admeasuring 3770.20 sq. mtrs. out of total area of 26487
sq. mtr. and building constructed thereon.
2. When this petition was heard on the earlier occasion, this Court
had made prima facie observations considering that as disputes were
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pending between the petitioners, who are trustees of Khimji
Bhagwandas Charity Trust and respondent no. 2 (lessee) before the
Small Causes Court, possibly the issue was of the petitioners asserting
their rights as owners of the property, which was subject matter of
pending dispute before the Small Causes Court.
3. With such prima facie observations so noted, the matter was
adjourned for further hearing today when Mr. Jahagirdar, learned
senior counsel for the petitioners has made submissions. Mr.Jahagirdar
submits that this is a classic case wherein the competent authority has
completely usurped its jurisdiction under section 11 of the Maharashtra
Ownership Flats (Regulation of the Promotion, Construction, Sale,
Management and Transfer) Act, 1963 (for short "the Act"). He has
submitted that although there were disputes between the petitioners as
owners and 'respondent no. 2-lessee', pending before the Small Causes
Court, in which respondent no. 1 and its members also intervened,
however, according to him, what is glaring is that entire building, in
respect of which deemed conveyance has been granted by the
impugned order, has been constructed illegally without any sanctioned
plan from the Municipal Corporation. It is his submission that the
building is a commercial building and the tenements in the building are
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purchased by the parties, who are members of respondent no. 1.
4. Mr. Jahagirdar would submit that the scheme of Section 11 cast
an obligation on the Competent Authority to verify all documents
which would include verification of documents to show that the
construction as undertaken was legal. This more particularly when
sub-section(3) of Section 11 uses the word "Occupation Certificate". It
is his submission that any order which is passed under section 11
cannot be oblivious to the other requirements as provided under the
Act, which confers obligation on the promoter to undertake an
authorized construction. In supporting this submission, Mr. Jahagirdar
has drawn the Court's attention to Section 4 of the Act and Section
4(1A)(a)(i) which provides that the agreement to be prescribed under
sub-section (1) would inter alia contain the particulars as specified in
sub-clause (a) of sub-section (1A), namely, the liability of the promoter
to construct according to the plans and specifications approved by the
local authority where such approval is required under any law for the
time being in force.
5. Thus, the issue as raised on behalf of the petitioners is that
implicit in Section 11 of the Act is the duty of the Competent Authority
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to consider such documents/material which would show that the
construction for which a deemed conveyance is prayed for, is legal and
authorized. In other words, there cannot be deemed conveyance of a
building which is illegally constructed.
6. Mr. Jahagirdar has also pointed out that a notice under section
351 was issued by the Municipal Corporation in respect of the illegal
construction. The members of respondent no.1 had filed a civil suit
before the City Civil Court at Mumbai, challenging the said notice. By
an order dated 22 April, 2014, the City Civil Court has rejected the
prayer for interim injunction. However, in an Appeal from Order
preferred against the order passed by the City Civil Court, this Court by
an order dated 5 March, 2020 restrained the Municipal Corporation
from taking coercive action in pursuance of Section 351 notice and
relegated the matter to the trial Court for adjudication of the suit.
7. Be that as it may, all these are interim proceedings. There is
much substance in the submission of Mr. Jahagirdar that there are no
sanctioned plan and the building itself so far is an unauthorized
building, pointed out in the interim order passed by the Bombay City
Civil Court. The order passed by this Court cannot be construed that
the construction is legal and authorized in the absence of sanctioned
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plan and/or any occupation certificate granted by the Municipal
Corporation.
8. Mr. Kini, learned counsel for respondent no. 1 has drawn my
attention to the synopsis prepared by him setting out dates and events.
According to him, there was a lease deed entered between the
petitioners and respondent no. 2 on 26 December, 2005, he has,
therefore, submitted that it is not a case that there were no rights
which were created in favour of respondent no. 2. However, the fact
remains that such a lease was terminated by the petitioners on 27
November, 2006. In this situation, it is difficult to accept Mr. Kini's
contention that any sanctity can be attributed to the construction which
is put up by the developer-respondent no. 3 and that too, to a
construction which is brazenly illegal without any plans sanctioned by
the Municipal Corporation, much less having any Occupation
Certificate.
9. Mr. Kini would also not dispute that notice under section 351
was issued by the .Mumbai Municipal Corporation in respect of the
premises and legality of the construction itself is the subject matter of
adjudication before the Bombay City Civil Court. Mr. Kini is certainly
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not in a position to justify that the building has been constructed
legally on the basis of sanctioned plan. He also does not dispute that
an Occupation Certificate is also not granted.
10. Considering all these circumstances, in my opinion, the question
which would arise for adjudication in the present petition is as to
whether the powers under section 11 of the Act to issue a deemed
conveyance can be exercised by the Competent Authority to grant
conveyance in respect of land and building when the construction itself
is unauthorized and illegal. The second issue which would arise for
consideration is whether or not in exercising such powers under section
11, the Competent Authority can be oblivious of the basic requirements
as ordained by Section 4 of the Act. In my opinion, the answer to these
questions would certainly decide the fate of the impugned order passed
by the Competent Authority.
11. I am of the prima facie opinion that the Competent Authority
could not have been oblivious to the specific requirements as ordained
by Section 3 read with Section 4 to grant a conveyance in respect of the
building which itself is unauthorized and for which no occupation
certificate was granted.
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12 As a sequel to the above discussion, the petitioners, in my
opinion, would be entitled to an interim relief as also the petition
would be required to be admitted. Hence, the following order:-
ORDER
(i) Admit. Hearing expedited.
(ii) There shall be an interim order in terms of prayer clause
(c) and (d), which reads thus:-
"(c) That pending the hearing and final disposal of this petition, this
Hon'ble Court be pleased to stay the operation, execution and implementation of the impugned order and the impugned certificate, both dated 25 March, 2021 issued by respondent no. 7.
(d) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain respondent no. 1 itself, its Members, servants, agents, officers or any person claiming through or under respondent no. 1, from in any manner whatsoever, taking any advantage of and acting in pursuance of the impugned order and the impugned certificate, both dated 25th March, 2021 issued by respondent no. 7"
13. The respondents are directed to file reply affidavits within a period of six weeks from today. After the pleadings are complete, the parties are at liberty to apply for final hearing of this petition.
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