Bombay High Court
Shanti Prakash Realty And ... vs District Deputy Registrar Co Op Soc, ... on 5 September, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:35743
WP-5427-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5427 OF 2023
1. M/s. Shanti Prakash Realty
& Infrastructure LLP formerly.
M/s. Shanti Prakash Realty
& Infrastructure Pvt. Ltd having it's
address at Office No.9, Shankeshwar
Darshan, B Wing, Ground Floor, B/H
Mazgaon Telephone Exchange, Sheth
Motisha Lane Mazgaon, Mumbai - 400 010.
2. Harshadrai Prakashchandra Jain
Having address at Office No.9, Shankeshwar
Darshan, B Wing, Ground Floor, B/H Mazgaon
Telephone Exchange, Sheth Motisha Lane
Mazgaon, Mumbai - 400 010. ...Petitioners
Versus
1. District Deputy Registrar, Co-operative
Societies, Mumbai City (1) 6th floor,
Malhotra House, Opposite G.P.O, Fort,
Mumbai 400 001.
2. Julian Co-operative Housing Society Ltd
Having address at Final Plot No.735 of
T.P. Scheme No.VI of Mahim and Cadastral
Survey No.344, Mahim Divi. B. W. Pathare
Marg, Dadar (West) Mumbai-400 028.
3. Bilcon Corporation
Through its Partners
A. Keshav Dattatray Pendse,
B. Dattatraya Bhalchandra Vedak
C. Mrs. Rohini Dattatraya Mahabaleshwarkar
D. Mrs. Shamala Suhas Pethe,
All having addressed at Navprabhat
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Chambers, Ranade Road, Dadar (West)
Mumbai - 400 028.
4. Alex Henry Fernandes
Residing at Flat No.3, Angelina Building,
Final Plot No.735, B.W. Pathare Marg,
Dadar (West), Mumbai - 400 028.
5. Ruth Menezes nee Fernandes
Residing at Room No.9, Fernandes Chawl,
TPS IV, Final Plot No.735, B.W. Pathare
Marg Dadar (West), Mumbai - 400 028.
6. Chaitanya Keshav Pendse
Occ.: Lawyer
Residing at Flat No. 14, Angelina Building,
B.W. Pathare Marg Dadar (West),
Mumbai- 400 028.
7. Jyoti Chaitanya Pendse Nee Chavan,
Occ: Lawyer
Residing at Flat No. 14, Angelina Building,
B.W. Pathare Marg Dadar (West),
Mumbai-400 028.
8. Mr. Ashay Apte,
Occ: Service
Residing at Flat No.13,
Angelina Building,B.W. Pathare
Marg Dadar (West), Mumbai-400 028.
9. Sanjay Chintaman Kulkarni,
Residing at Angelina Flat no. 5
1st floor B.W. Pathare Marg
Dadar (West), Mumbai-400 028.
10. Swati Sanjay Kulkarni,
Residing at Angelina Flat no. 5
1st floor B.W. Pathare Marg Dadar
(West), Mumbai-400 028.
11. Maria Severia Fernandes
(Since Deceased)
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Through her legal heirs
A. Clotilda Rose Fernandes
(Since deceased)
Legal Heirs Being unknown
B. Rita Luisa Fernandes
(Since deceased)
Legal heirs being unknown
C. Dominic F. Raymond Fernandes
(Since deceased)
Legal heir being unknown
D. Richard Angelo Fernandes
(Since deceased)
Legal heirs being unknown
All having address at Final Plot No.735
of T.P. Scheme No.VI of Mahim and
Cadastral Survey No.344 Mahim Division,
B.W. Pathare Marg Dadar (West),
Mumbai-400 028.
E. Sebastian Charles Fernandes
(Since deceased)
Through his legal heir
i) Vivak Reuben Fornandes
Having last known address
at 14-Pushkar, Jullian Building,
B.W. Pathare Marg Dadar (West),
Mumbai-400 028.
F. Edward Marshall Fernandes
(Since deceased)
Through his legal heirs
i) Julius Damien Fernandes
Having last known address at Flat No.6,
Angelina Building, Final Plot No.735,
D.S. Babrekar Raod Dadar (West),
Mumbai - 400 028
ii) Sabino George Fernandes,
Having last known address at Flat No.10,
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Angelina Building, Final Plot No.735,
D.S. Babrekar Road Dadar (West),
Mumbai - 400 028
12. Madhav Gajanan Kokane,
(Since deceased)
Through his legal heirs
A. Mrs. Anagha Madhav Kokane,
B. Mrs. Manisha Dinesh Vaidya,
C. Mrs. Snehal Shashank Mehandale
D. Mrs. Shruti Sandesh Kokane,
All having address at 1st Floor,
Angelina Building, Final Plot
No.735, B.W. Pathare Marg,
Dadar (West), Mumbai - 400 028.
13. Mrs. Shruti Sandesh Kokane,
Residing at Flat Nos. 7 & 8, 1st floor,
Angelina Building, B. W. Pathare Marg,
Dadar (West), Mumbai-400 028.
14. Pradeep Narahari Gogte,
Residing at Flat No.16, 3rd Floor,
Angelina Building, B.W. Pathare
Marg, Dadar (West), Mumbai - 400 028.
15. Kanchan Co-operative Housing Society
Limited Having address at TPS IV, Sub
Plot No.3, Final Plot No. 735, Fernandes Wadi,
Veer Savarkar Marg, Dadar West, Mumbai- 400 028.
16. Maryland Construction Company Pvt.Ltd.
Having office at Navprabhat Chambers,
2nd Floor, Ranade Road, Dadar (West),
Mumbai-400 028. ...Respondents
------------
Adv. Sean Wassoodew for the Petitioners.
Adv. Aseem Naphade a/w Adv. Rupesh Singh i/b Ameet Mehta for Respondent
No. 2, Siddhi Bhosale for Respondent Nos. 4 to 10.
Adv. Priyanka Chavan, AGP for the State.
------------
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Coram : Sharmila U. Deshmukh, J.
Reserved On : August 6, 2024
Pronounced On : September 5, 2024
JUDGMENT :
1. By this Petition filed under Article 227 of Constitution of India, exception is taken to the order dated 4th February, 2022 passed by the District Deputy Registrar under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short "MOFA") granting certificate in favour of Respondent No. 2 to enforce Unilateral Deed of Assignment of Lease in respect of area admeasuring 947.40 sq. mtrs. along with structure standing thereon out of the undivided larger area admeasuring 3743.34 sq. mtrs. of Final Plot No. 735 TP Scheme No.VI. Mahim, Dadar (W), Mumbai- 400 028.
FACTUAL MATRIX :
2. The background facts as regards the ownership of the Final Plot No. 735 is as under :
(a) One Julio Dominic Fernandes was the owner of the larger property who expired on 4th June, 1943 leaving behind him surviving his widow and four sons and two daughters.
(b) One of his sons Sebastian obtained Letters of Administration in respect of the estate of Julio.
(c) Sebastian developed the property and initially constructed building known as "Angelina" which was partially constructed.
(d) An area admeasuring 949.84 square meters was leased by Sebastian to Respondent No. 3 Bilcoin Harish 5 of 22 WP-5427-2023.doc Corporation vide registered lease deed dated 26 th March, 1971 who constructed the building "Pushkar", which is the Respondent No. 2 Society.
(d) By Agreements dated 24th February, 1979 and 6th April 1979, the Respondent Nos. 11A to 11D sold to Respondent No. 16 an area admeasuring 946.36 sq. mtrs on which the building "Kanchan" was constructed. Apart from the three buildings there are certain old chawls/structures standing on the larger land.
(e) By Deed of Conveyance dated 17th May, 2010, the Petitioners purchased 50% undivided right title and interest in the larger land from Vivek Rueben- legal heir of Sebastian.
3. The Respondent No.2-Society filed an application under sub section (3) of Section 11 of MOFA being Application No.29 of 2021, seeking grant of certificate entitling the Respondent No.2 to execution of Unilateral Deed of Assignment of Lease for area admeasuring 949.84 sq. mtrs. To the said application, the Respondent No.3 herein i.e. Bilcon Corporation as well as the present Petitioners and the other owners were impleaded as party. The Respondent No. 15-Society subsequently filed an application for intervention, which came to be allowed and they were added as party Opponent.
4. The Respondent No. 2 contended that the Respondent No. 3 had entered into an agreement for sale with individual flat purchasers which are duly stamped and the Respondent No.3 has failed to execute the Deed of Assignment of Lease. Alongwith the application, the Architect's certificate was annexed and the flat purchaser's agreement. The case of the co-owners of the larger land was that the application was barred by limitation, the Competent Authority had no Harish 6 of 22 WP-5427-2023.doc jurisdiction after enactment of RERA, there is no sub division of final plot and deemed conveyance of leasehold property cannot be granted. The case of the flat purchasers of Angelina Building was that they are the co-owners having purchased undivided share in the said property, there cannot be subdivision of the plot and there cannot be deemed conveyance of leasehold rights. The Respondent No. 15 Society contended that after sub plot no. 3 was sold to Maryland Construction, the Respondent No. 15 Society was constructed and the Respondent No.15 is entitled to conveyance of 1205 sq. yd. and common amenities situated on the larger land.
5. The Competent Authority observed that the Respondent No. 2 Society was a registered Society, the sanctioned plan by the Corporation shows the constructed structure on Sub Plot No. 1 admeasuring 1136 sq. yd. and the Respondent No. 2 Society is not seeking sub division of the plot. The Competent Authority further held that the GR dated 22nd June, 2018, provides for adjudication of the stamp duty by the Collector of Stamps and therefore the issue of unstamped agreement for sale cannot create an obstacle for allowing the application. The Competent Authority considered Clause 26 of the flat purchaser's agreement which provided for execution of assignment of lease and as per the Architect's Certificate granted certificate for unilateral execution of lease deed in respect of 947.40 sq. mtrs.
SUBMISSIONS :
6. Mr. Wassoodew, learned counsel for the Petitioners would submit that the present Petitioners though added as Respondent No. 3 in the original application, there was no service upon the Harish 7 of 22 WP-5427-2023.doc Petitioners. He points out that the address given in the application is the site address i.e. Final Plot No. 735 of TP Scheme No. VI, whereas, the address as per Register of Companies is different address. He submits that the order of the Competent Authority incorrectly records that the Advocate who had caused her appearance on behalf of Respondent Nos.7 to 11 is also appearing for the present Petitioners. He submits that in the original application, the Petitioner No.1 was Respondent No.4 and the concerned Advocate was representing Respondent Nos.2 and 3 therein and after amendment, the present Petitioner No.1 was numbered as Respondent No. 3 and therefore the order incorrectly records that the Advocate is appearing for Respondent No.3. He submits that simultaneously with the present proceeding, the Respondent No. 15 had also filed a similar application for deemed conveyance and the clerk of the Advocate for the Petitioners in the proceeding initiated by Respondent No.15-Society was sent to take date in the said proceedings. However, the office of the Respondent No. 1 made the clerk sign on the roznama in the proceeding filed by the Respondent No.2-Society. He submits that no appearance was filed by the Advocate on behalf of the Petitioners in the application filed by Respondent No.2. He submits that the said position is evident from the fact that the last date of hearing of Respondent No.15-Society's application was on 8 th September, 2021 and thereafter in the roznama of the proceeding of Respondent No. 2- Society, the signature on behalf of the Petitioner No.1 has not been entered. He submits that Competent Authority, without any service on the present Petitioners considered the submissions canvassed by the Advocate for the Respondent Nos.7 to 11 as the submissions canvassed on behalf of the present Petitioners and thus, there is a violation of principle of natural justice.
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7. On merits, he would submit that the Respondent No. 2-Society has made incorrect statement in the application under Section 11 of MOFA that the flat purchaser's agreement were stamped. He would further submit that the resolution passed by the Respondent No.2- Society, was for the purpose of filing an application for deemed conveyance and not for assignment of lease. He would further submit that the Architect's Certificate refers to the plot on which the Respondent No.2-Society is standing as sub plot No.1 of Final Plot No.735 under the TP Scheme No.4 when there is no subdivision of the plots. He submits that as per the Town Planning Scheme approved by the State Government, the subject plot was sanctioned as Final Plot No. 735 under the provisions of Maharashtra Regional Town Planning Act, 1966 (for short "MRTP Act") and once final scheme has sanctioned, there could not be any subdivision, amalgamation or change in the final plot unless there is a sanction obtained by the State Government. He submits that there is no actual subdivision of the plot and the copy of the subdivision permission granted by the Municipal Corporation is only a notional subdivision. He would further submit that any attempt of subdivision would result in FSI violation and imbalance of FSI and therefore, the deed of assignment of leasehold rights could not have been granted. He would further submit that application filed by the Respondent No.15-Society was rejected by the Competent Authority wide order dated 27 th December 2021. He submits that if the Petitioners had been duly served, necessary submissions could have been advanced and seeks remand.
8. Per Contra, Mr. Naphade, would submit that the application was made for unilateral deed of assignment of lease and not for deemed Harish 9 of 22 WP-5427-2023.doc conveyance under Section 11 of MOFA which is permissible. He points out the Architect's Certificates and submits that in accordance with the amended order of subdivision of Final Plot No.735 as noted in the communication by the Municipal Corporation of Greater Mumbai which is annexed at page No. 156 of the Petition, the Respondent No.2-Society was constructed on sub plot No. 1 of the larger plot. He would further submit that under the provisions of Section 11 of MOFA, the promoter is liable to convey his right, title and interest in the property and points out Clause No. 26 of the flat purchaser's agreement where the Respondent No. 3-Society had agreed to execute assignment of lease in favour of the Co-operative Society. He would further submit that during the proceeding, the present Petitioners were duly represented, which is evident from the roznama on record. He submitted that in event, there was any incorrect recording of the proceeding, the Petitioners should have got the judicial records corrected, which was not done. He would further point out page No.413 of the Petition which is the last page of the Application No.29 of 2021 filed by the Respondent No.2-Society which has been received on behalf of the present Petitioner by the same person as representative of the Petitioner who has signed the roznama in the judicial proceedings. He submits that therefore, the contention that it was the Clerk of the Advocate for the Petitioners who had signed the roznama is incorrect. He would further submit that the application of the Respondent No.15-Society was rejected for the reason that there was a discrepancy in the area sought by the Respondent No.15-Society and the area in the building plan. He submits that as the parties have been heard at length by this Court the remand of the matter only for the reason that the Petitioners were not heard would be a useless formality and the useless formality Harish 10 of 22 WP-5427-2023.doc theory laid down by the Apex Court in the case of Aligarh Muslim University And Ors. vs. Mansur Ali Khan And Ors. was made applicable by the learned Single Judge of this Court even in the petition challenging deemed conveyance application in the case of Gayatri Constructions vs. State of Maharashtra (WP No. 3188 of 2023).
9. In rejoinder, learned counsel for the Petitioners would submit that in the written statement of the other Opponents, specific contention was taken that there was no subdivision of the final plot and that the lease has been terminated and the dispute thereof is pending in the Small Causes Court, which has not been considered by the Authority. He would further submit that the original lease deed was not produced along with the application.
10. In sur rejoinder, Mr. Naphade, would contend that the agreement executed between the parties was MOFA agreement and therefore, the application for unilateral assignment of lease was maintainable even in the absence of the original lease dead. He submits that in any event, the recital about the lease executed by the owners in favor of the vendors is mentioned in the flat purchaser's agreement and what is required to be produced is the flat purchasers agreement.
REASONS AND ANALYSIS :
11. From the record, it appears that the Respondent No.2-Society is part of the larger layout on which apart from the Respondent No.2- Society there are other buildings and structures standing. Pursuant to the lease deed executed by one of the co-owners in favour of the Harish 11 of 22 WP-5427-2023.doc Respondent No.3-Developer, the Respondent No.3 has constructed the building "Pushkar" and entered into individual flat purchaser agreements with the flat purchasers in the year 1971. The Respondent No.2 Petitioner Society came to be duly registered in the year 1975 under the provisions of Maharashtra Co-operative Societies Act, 1960. Alleging non compliance by the promoter in executing the Deed of Assignment of the lease hold rights in the land and building, the Competent Authority was approached under Section 11(3) of MOFA seeking unilateral deed of assignment in respect of land admeasuring 949.80 sq. mtrs. alongwith the building constructed thereon out of Final Plot No. 735.
12. The statutory scheme of Section 11 of MOFA casts an obligation upon the Promoter to take all necessary steps to complete his title and convey to the organisation of person, who takes flats, which are registered either as cooperative society or company or association of apartments, his right, title and interest in the land and building by executing a document in that regard in accordance with the agreements executed under Section 4 of the MOFA. What assumes significance is that the obligation cast upon the Promoter under Section 11 of MOFA is to convey "his right, title and interest in the land and building" in accordance with the agreement executed under Section 4. In event of non compliance of the obligation by the Promoter to convey his right title and interest to the Society, the provisions of sub section (3) of Section 11 permits the cooperative society to approach the Competent Authority for the said purpose.
13. Under Sub Section (3) of Section 11, the Co-operative Society may make an application to the Competent Authority accompanied by Harish 12 of 22 WP-5427-2023.doc true copies of the registered agreements for sale executed by the Promoter with the individual flat purchaser and under sub section (4) of Section 11, the Competent Authority, upon receipt of an application through members of cooperative society under sub- section 3, is required to conduct an enquiry and after verifying the authenticity of the documents submitted, by giving the Promoter a reasonable opportunity of being heard, after arriving at a satisfaction as to the entitlement of the Society issue a certificate conveying the right, title and interest of the promoter in favour of the Applicant.
14. At the time when the individual flat purchaser agreements were entered into between the members of the Respondent No. 2 Society and the Promoter, there was no prescribed form under the Rules of 1964 and thus, the parties were governed by the contractual terms and the right, title and interest of the promoter in the present case will therefore have to be granted strictly in accordance with the terms of the agreement.
15. The covenant in the Flat Purchasers Agreements governing the assignment of lease hold rights of the Promoter is contained in Clause 26 which reads thus :
"26. After the building is completely ready and fit for occupation and after the Society or Limited company or Incorporated Body is registered and only after all the flats and parking spaces or garages in the said building have been sold and disposed of by the Vendors and after the Vendors have received all dues payable to them under the terms of the Agreement with various flat owners, the Vendors shall execute the assignment of the lease in favour of such Co-operative Society or other Incorporated Body as the case may be."
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16. Clause 26 reproduced above makes it evident that the agreement casts an obligation upon the Promoter after registration of the Society to execute the assignment of lease in favour of the Co- operative Society. Recital (1) of the Flat Purchaser's Agreement refers to the Indenture of Lease dated 26 th March, 1971 executed in favour of the Promoter for period of 98 years commencing from 26 th March, 1971. The First Schedule to the Flat Purchaser's Agreement describes the lease hold property as land admeasuring 947.40 sq. mtrs. being portion of Final Plot No. 735. It is this obligation of the Promoter of assignment of lease which is sought to be enforced by Respondent No.2-Society by filing an application under Section 11(3) of MOFA.
17. The Flat Purchaser's agreement makes it evident that the lease hold rights were demised upon the lessee for a period 98 years commencing from 26th March, 1971 and the lessee had developed the property and constructed the building of Respondent No.2-Society. The application under Section 11(3) of MOFA seeks execution of unilateral deed of assignment of the land which is in consonance with the land demised upon the lessee i.e. Respondent No.3. The Competent Authority has considered the recital in the flat purchaser's agreement as also the First Schedule therein and has rightly granted the certificate for execution of unilateral deed of assignment in respect of land admeasuring 947.40 sq. mtrs. and the structure standing thereon.
18. Dealing now with the objections raised by the learned Counsel for the Petitioners, the first objection is that the entire plot is undivided and part of Town Planning Scheme and there cannot any Harish 14 of 22 WP-5427-2023.doc subdivision without permission of the State Government. To substantiate the submission no statutory provision of MRTP has been brought to notice of this Court providing for prior permission of State Government for sub-division. The Deed of Conveyance dated 17 th May, 2010 executed in favour of the Petitioner itself contains a recital that the larger land was divided for purpose of construction into four parts numbered 1 to 4 and the Respondent No.2 Building is constructed on part numbered one and the FSI consumed in construction is 2682.43 sq mtrs. While granting building permission the Municipal Corporation of Greater Mumbai has approved an amended subdivision by its communication dated 25th April 1979. The dispute which is sought to be raised by the Petitioner are disputed questions which cannot be gone into by the Competent Authority in its limited jurisdiction. That apart, in the present case, what is sought is the assignment of lease hold rights of the Promoter i.e Respondent No.3 in favor of the Society in accordance with the flat purchaser's agreement and there is no prayer for deemed conveyance of the land or subdivision of the land.
19. The Competent Authority while considering the same objection of absence of sub division of the Final Plot No.735 raised by the other Respondents has observed that as per the sanctioned plan annexed to the Application under Section 11(3) of the MOFA, the plan has been approved for construction of sub plot No.1 admeasuring 1136 sq. yd. The Competent Authority has considered that the relief sought in the present case is not for subdivision of the land and therefore, has rightly rejected the contention of the Respondents.
20. It will be worthwhile to note that the Petitioner is one of the co-
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owners of the entire larger land by virtue of Deed of Conveyance executed in favour of the Petitioner on 17 th May, 2010. The Deed of Conveyance when perused contains a recital about the lease deed dated 26th March, 1971 executed in favour of the Respondent No. 3 and Recital 15 of the Deed of Conveyance conveys 50% undivided right in the larger land subject to the Deed of Lease dated 26 th March, 1971 executed in favour of the Respondent No.3. The Petitioner was therefore put to notice of the Indenture of lease of the year 1971 and also about the formation of Respondent No.2-Society along with the FSI consuming the construction of the building. The Petitioner was well aware of the lease hold rights existing in favor of Respondent No.3 which is required to be assigned to the flat purchasers. Although it is sought to be contended that proceedings have been instituted for termination of lease, while adjudicating the application under Section 11(3) of MOFA, the parallel proceeding which has not culminated in a decree yet is immaterial.
21. To simplify the procedure in respect of grant of deemed conveyance certificate, the Government of Maharashtra has issued a government resolution dated 22nd June 2018. Sub-clauses (1), (3) and (4) of Clause 2(B) of the said resolution reads thus :
"1) If there are many buildings on one plot and have a separate co-operative society of each building and if construction of some of them is incomplete then while making Deemed Conveyance of completed building, undivided share of occupancy right in the proportion of construction on the proportionate area of the construction of the building of such society or ground coverage or plinth area, similarly open space, common services and facilities, roads should be given."
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"3) If there is more than one society in one layout and out of them only one society has made such application, similarly other societies are not co-operating for conducting measurement of the land of the applicant society then the District Dy. Registrar, Co-operative Societies, and Competent Authority shall suggest the applicant society to conduct the measurement according to the approved plan from the Architect on the panel of the Competent Authority who approved the construction plans of the concerned society and submit the report regarding area of the society.
4) If the developer did not complete the project in expectation of getting additional FSI or TDR in urban area, then in such cases, deemed conveyance of the number of flats proposed as per approved construction plan and that much flats are constructed then their deemed conveyance should be made."
22. The guidelines specifically deal with the situation where there are many buildings on one plot and have separate cooperative societies and the construction of some of them are incomplete. The purport is to grant conveyance of the land required to sustain the constructed structure along with the proportionate area in common amenities is required to be conveyed. The guidelines though refer to the execution of conveyance contains sufficient guidance qua the area in respect of which leasehold rights can be granted which is sufficient answer to the submission of Mr. Wassoodew about the imbalance in FSI. The GR of 22nd June, 2018 binds the Competent Authority and has rightly been considered by the Competent Authority while passing the impugned order.
23. The Competent Authority is enforcing the Promoter's obligation and while granting Unilateral deed of assignment of lease is required to consider the area of the land which was demised upon Harish 17 of 22 WP-5427-2023.doc the lessee i.e. Respondent No. 3 herein and which is required to be transferred to the Respondent No.2-Society which is more than sufficiently evident from the first schedule to the flat purchaser's agreement. The Competent Authority has taken into consideration the Architect's Certificate which gives the area statement of the Respondent No.2's building as under :
Details of the Existing Buildings as per above referred approved plans are as follows:-
Sr. No. Description Area as per
Approved Plan
1. Total Plot Area 949.80 Sq. mts.
2. Deduction for Road Set-back area Nil
3. Net Plot Area 949.80 Sq. mts.
4. Deductable R. G. (15%) as per Layout Nil
5. Balance Plot Area 949.80 Sq. mts.
6. Addition for FSI Area under D P Road Nil
7. Total Area 949.80 Sq. mts.
8. FSI permissible 2.824
9. FSI Credit available by D. R. (T.D.R.) Nil
10. Total Permissible Floor Area 2682.30 sq.mts.
11. Built-up Area of JULLIAN CHSL 2682.30 sq.mts.
12. Total Built Up Area 2682.30 sq.mts.
The Competent Authority has rightly permitted execution of unilateral deed of assignment of lease in respect of area which was demised upon the Respondent No.3 as certified by Architect's Certificate.
24. The limited jurisdiction which the Competent Authority exercises while adjudicating an application under Section 11(3) is to Harish 18 of 22 WP-5427-2023.doc convey the Promoter's right title and interest in the land and building as agreed in the flat purchaser's agreement. While exercising the powers under Section 11(3) of the MOFA, the Competent Authority steps into the shoes of the promoter and conveys his right, title and interest as per the flat purchaser's agreement. Any dispute as regards the right, title and interest in the said property is not within the jurisdiction of the Competent Authority. In Mazda Construction Company And Ors. vs Sultanabad Darshan CHS And Ors. [2012 SC Online Bom 1266], this Court has held that what has to be conveyed even by a deemed conveyance which is an unilateral act and which enables the flat purchasers to acquire the Promoter's right, title and interest in the land and the building and therefore, it cannot be said that an unilateral deemed conveyance conveys something more than what belongs to the Promoter. The position was then clarified in the case of Shree Chintamani Builders vs State of Maharashtra [(2016) SCC OnLine Bom 9343] holding thus:
"3. We do not think that the petitioner's apprehension has any basis. This court in number of judgments and particularly in the case of Mazda Construction Company vs. Sultanabad Darshan CHS. Ltd. and Ors. has clarified that an order granting deemed conveyance will not conclude the issue of right, title and interest in the immovable property and to such an extent as is apprehended by the petitioner. It is not as if such an order is passed that the petitioners have no remedy to question the act of the society on the strength of such deemed conveyance."...
25. The position in law is settled that the unilateral assignment of lease does not preclude the Petitioner or other co-owners to bring substantive suit seeking right, title and interest in the said land.
26. One of the objections of Mr. Wassoodew that the application Harish 19 of 22 WP-5427-2023.doc under Section 11(3) suffers from infirmities as the resolution passed by the Respondent No.2-Society was for deemed conveyance and not for assignment of lease, the flat purchasers agreement is not stamped and that the Affidavit in support of the application affirming the truthfulness of the statement in the Application is false. Although the resolution by Respondent No.2-Society speaks of deemed conveyance merely because the application was then filed for assignment of lease does not render the authorisation illegal. The resolution is very clear that it authorised the filing of an application under Section 11(3) of MOFA before the Competent Authority. The authorisation cannot be held to invalid merely because the relief sought in the Application under Section 11(3) is different. As regards the flat purchasers agreement, the agreement on record contains a Certificate under Section 41 of Bombay Stamp Act, 1958 and shows the payment of stamp duty. The Competent Authority has considered the GR of 22 nd June, 2018 which provides for adjudication of the flat purchaser's agreement alongwith all details about payment of stamp duty. Therefore, even if it is accepted that the agreement is not stamped and registered, the same will be adjudicated by the District Registrar and Collector of Stamps.
27. Coming to the submission of violation of principles of natural justice, the Petitioners is one of the co-owners and the submissions raised by the Petitioners before this Court were raised by the other co-owners and dealt with by the Competent Authority. There is a dispute about the Petitioners being represented by an Advocate which has been recorded in the impugned order. The concerned Advocate appearing for some of the Respondents herein has submitted that there was no appearance caused on her behalf for the Harish 20 of 22 WP-5427-2023.doc Petitioner No.1 herein and the error has been committed by virtue of the amendment by which the present Petitioner No.1 was earlier Respondent No.4 and thereafter numbered as Respondent No.3. The fact remains that no application was made by either the Advocate or by the Petitioners herein to the Competent Authority to correct the record and this Court will have to accept the judicial record as it stands. That apart, Mr. Naphade was right in pointing out that the same signature as appearing in Roznama has been affixed while accepting service of the amended Form VII which is annexed at page No. 413 on behalf of the Petitioner. Apart from the above, as some of the Respondents were represented, public notice was issued along with full cause title which is sufficient compliance of the Rules under the MOFA. As the primary grievance raised by the Petitioners was non service of notice, considering that the order of the Competent Authority was of the year 2022, instead of remanding the matter, the Petitioners were heard by this Court. The submissions raised by the Petitioners in the present case were also canvassed by the Respondents before the Competent Authority which has dealt with the same. Even if it is accepted that the Petitioner was not duly served, in light of the above discussion which deals with the objections of the Petitioners to the Application under Section 11(3) of MOFA, remanding the proceedings before the Competent Authority would be an empty formality.
28. Considering the above, in my view, the grant of certificate for execution of unilateral deed of assignment of lease passed by the Competent Authority does not suffer from any error. I find no reason to interfere with the order of the Competent Authority. In event the Petitioners seeks any right, title and interest in the land which is Harish 21 of 22 WP-5427-2023.doc subject matter of the unilateral assignment of lease, it is open for the Petitioners to adopt appropriate civil remedy. In light of the above, the Petition fails and stands dismissed.
[Sharmila U. Deshmukh, J.]
Harish 22 of 22
Signed by: Harish V. Chaudhari
Designation: PA To Honourable Judge
Date: 06/09/2024 10:28:54