Bombay High Court
Managala Madhusudan Sathaye And Ors vs M/S E-Square Premises Co-Operative ... on 9 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 2640
Author: M.S.Karnik
Bench: M. S. Karnik
24. wpst 2164.21.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION STAMP NO. 2164 OF 2021
Managala Madhusudan Sathaye and ors. ....Petitioners
Vs.
M/s.E-Square Premises Co-operative
Housing Society Ltd. and ors. ..... Respondents
Mr.Rajiv Singh & Mr.Rushabh Sheth a/w Mr.Sayeed Mulani i/b
Mulani & Co., for the Petitioners.
Mr.Mayur Khandeparkar a/w Mr.Tushar Gujjar i/b Solicis Lex, for
Respondent No.1.
Mr. Vishal Kanade a/w Mr.Vasim Shaikh i/b Pravin Mehta & Mithi &
Co., for Respondent No.2.
Mr.S.H. Kankal, AGP for Respondent - State.
CORAM : M. S. KARNIK, J.
DATE : 09th MARCH, 2021
P.C. :
. Heard learned Counsel for the Petitioners.
2. The order under challenge is passed by the
competent authority under the provisions of the Maharashtra
Ownership of Flat Act 1963 (for short 'MOFA'). It is the case of
the Petitioners that they being the owners entered into the
development agreement with the Respondent No.2 - developer.
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24. wpst 2164.21.doc
My attention is invited to the agreement entered into by one of
the fat purchasers wherein it is specifcally mentioned that 50%
of the entire land & constructed portion belongs to the owner.
According to learned Counsel the Petitioners are also entitled to
50% car parking, atrium space, terrace area. According to
learned Counsel, they are therefore the owners of the 50%
constructed area along with the parking, atrium and terrace area.
It is the contention of the learned Counsel that what was agreed
was to form a condominium and not the Society. He submits that
despite raising specifc objections, the competent authority
proceeded to pass the order granting deemed conveyance in
favour of the Respondent No.1 - Society in respect of the entire
portion. Learned Counsel submits that though the Society is
now registered, the Petitioners have fled appropriate
proceedings challenging the registration. For all these reasons,
he submits that the impugned order passed by the Deputy
Registrar granting deemed conveyance calls for interference.
3. On the other hand, learned Counsel for the
Respondent No.1 - Society invited my attention to the various
provisions of the Maharashtra Apartment Ownership Act, 1970.
He submits that the procedure as contemplated under the said
Act regarding formation of the condominium was never initiated
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24. wpst 2164.21.doc
by the Petitioners though the agreement was executed as far
back as on 12/10/2009 and even the construction of the building
was completed in December 2012. Moreover, the developer has
entered into the agreement under Section 4 of the MOFA Act with
the fat purchasers. Learned Counsel for the Respondents invited
my attention to the pleadings in the Petition. In clauses (i) & (j),
the Petitioners have taken the contention that the competent
authority could not have decided all these issues as the facts of
the present case require leading and appreciation of evidence by
both the parties and this is possible only in the Civil Court and
not before Respondent No.3. It is further averred in the Petition
that entire procedure to decide the Application before
Respondent No.3 is otherwise summary in nature. It is pointed
out that Petitioners have already instituted a suit for injunction.
4. Learned Counsel for the Respondents relied upon the
decision of this Court dated 29/06/2016 in the case of Zainul
Abedin Yusufali Massawawala and ors. Vs. The Competent
Authority District Deputy Registrar of Co-operative
Housing Societies,Mumbai and ors. in Writ Petition No.
2163 of 2014 in support of his contention that the dispute of
right, title, interest or otherwise in the suit property can be
decided only by the Civil Court.
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5. I fnd force in the submissions of learned Counsel for
the Respondent - Society. Considering the nature of the dispute
and in the light of the law laid down by this Court in the case of
Mazda Construction Company & Others v/s Sultanabad
Darshan CHS Ltd. & Others1 and in the case of 2Angeline
Randolph Pereira Vs. Suyog Industrial Estate Premises
Co-operative Society Ltd., wherein this Court has clearly held
that in the writ jurisdiction and in the garb of examining the
legality and correctness so also validity of deemed conveyance,
Court cannot examine the issues which are essentially disputed.
The Petitioners can bring a substantive suit for title or otherwise
before the competent civil court.
6. In this view of the matter and considering the law laid
down by this Court in the Mazda Construction Company &
Others & Angeline Randolph Pereira (supra), I proceed to
pass the following order.
ORDER
(i) The Petitioners would be at liberty to fle a substantive suit for adjudication of title and appropriate reliefs if not already fled, in respect of the property in question.
1 2013 (2) ALL MR 278 2 2018(6) ALL MR 729 4/5
24. wpst 2164.21.doc
(ii) 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.
7. Keeping all contentions open, Petition is rejected.
(M.S.KARNIK, J.)
Digitally
Urmila signed by
Urmila P. Ingle
P. Date:
2021.03.09
Ingle 20:04:54
+0530
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