Bombay High Court
Savitri Bhanu Sandam And 5 Ors vs Vasundhara Dhananjay Dongre on 12 March, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:4062
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.23095 OF 2021
Vasundhara Dhananjay Dongre
(since deceased through LRs)
1A Gayatri Dhananjay Dongre
1B Dhanashri Dhananjay Dongre
1C Shridhar Dhananjay Dongre
Through Power of Attorney Holder
Nilesh Shantaram Muzumdar ....Petitioners
V/S
1 The State of Maharashtra
2 The Principal Secretary
3 The District Deputy Registrar
4 Krishna Co-operative Housing Society Ltd.
5 Paranjape Land Developers Pvt. Ltd.
6 Jayant Moreshwar Parajape
7 Shrikant Purushottam Paranjape
8 Shashank Purushottam Paranjape
9 Prasad Govind Paranjape ....Respondents
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WITH
INTERIM APPLICATION NO.151 OF 2023
IN
WRIT PETITION (L) NO.23095 OF 2021
Spartek Properties & Securities Pvt. Ltd. ....Applicant
IN THE MATTER BETWEEN
Vasundhara Dhananjay Dongre & Ors. ....Petitioners
V/S
The State of Maharashtra & Ors. ....Respondents
WITH
INTERIM APPLICATION NO.159 OF 2023
IN
WRIT PETITION (L) NO.23095 OF 2021
Anant Raghunath Sandam & Ors. ....Applicants
IN THE MATTER BETWEEN
Vasundhara Dhananjay Dongre & Ors. ....Petitioners
V/S
The State of Maharashtra & Ors. ....Respondents
WITH
INTERIM APPLICATION (L) NO.2583 OF 2023
IN
WRIT PETITION (L) NO.23095 OF 2021
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Savitri Bhanu Sandam & Ors. ....Applicants
IN THE MATTER BETWEEN
Vasundhara Dhananjay Dongre & Ors. ....Petitioners
V/S
The State of Maharashtra & Ors. ....Respondents
_________
Mr. S.S. Patwardhan i/b Mr. Bhooshan R Mandlik for the Petitioners.
Mr. Shanay Shah with Mr. Mahesh Chitnis and Mr. Siddhant P.
Kulkarni i/b M/s. Chitnis Vaithy & Co. for Respondent No.4.
Mr. G. S. Godbole, Senior Advocate i/b Mr. Prasad Kulkarni for
Respondent Nos.7 and 8.
Dr. Abhinav Chandrachud i/b Ms. Sucheta D. Ghaisas, for Applicants
in IAL 2583 of 2023 and IA 159 of 2023
Mr. Darshit K. Jain i/b Ms. Divya Jain for Applicant in IA 151 of 2023.
Mr. Abhay Patki, Additional GP with Ms. Nazia Shaikh, AGP for
Respondent Nos.1 to 3/State.
__________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : MARCH 1, 2024.
PRONOUNCED ON: MARCH 12, 2024.
JUDGMENT:
1 Rule. Rule is made returnable forthwith. By consent of the parties, Writ Petition is taken up for final hearing and disposal.
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2012 passed by the District Deputy Registrar, Co-operative Societies, Mumbai City-3 and Competent Authority granting conditional unilateral deemed conveyance of land admeasuring 4342.06 square meters and building constructed thereon in favour of Respondent No.4- Society as well as communication dated 19 October 2013 withdrawing the conditions imposed in the certificate of deemed conveyance. The Petition was originally filed by Vasundhara Dhananjay Dongre through her power of attorney holder Mr. Nilesh Muzumdar. On the death of original Petitioner, her legal heirs are brought on record as Petitioner Nos.1A to 1C, who are prosecuting the Petition through their constituted power of attorney Mr. Nilesh Muzumdar.
3 Facts of the case as reflected in the Petition are as follows. Land bearing CTS Nos.143, 144, 144(1) to (5), 145, 146, 146(1) to (3), 147, 147(1) to (13), 148, 149, 150 and 151 was originally owned by Petitioner's grand-father Shri Vishnu Bhalchandra Paranjape. He developed the land by amalgamating the same in the year 1994, when the said plots were assigned new CTS No.143. Petitioner has given details as to how the said land devolved upon various legal heirs upon death of Vishnu Bhalchandra Paranjape. It is Petitioner's case that her katkam Page No. 4 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 5/24 903_wpl_23095.21_J_os(1).doc father Moreshwar @ Baburao Vishnu Paranjape inherited a share in his father's property and died intestate on 2 September 1978. It is Petitioner's case that she and her brother Jayant Moreshwar Paranjape had undivided share in larger properties owned by Paranjape family including CTS No.143 (new). It is Petitioner's case that her mother's name continued to be reflected in the property card relating to CTS No.143(new). Petitioner accuses Respondent Nos.6 to 9 who are other members of Paranjape family of illegal land grabbing by unauthorizedly selling the writ land to Respondent No.4-Society without obtaining the consent of the Petitioner. That Respondent Nos.6 to 9 incorporated a Company in the name and style as Paranjape Land Developers Private Limited (Respondent No.5) for selling various properties of Paranjape family.
4. Respondent No.5 carried out development on the writ land and executed flat purchase agreements with the purchaser of flats in the building constructed on the writ land. The flat purchasers formed Respondent No.4-Krishna Co-operative Housing Society Limited. The Society applying for issuance of unilateral deemed conveyance under section 11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). That Petitioner was not issued notice in respect of the said katkam Page No. 5 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 6/24 903_wpl_23095.21_J_os(1).doc application nor was she heard despite having right, title and interest in the writ land. That the documents produced by the Respondent No.4- Society before Competent Authority were inadequate and relevant documents were not produced to prove title in favour of Respondent No.5 promoter which could be conveyed to the Respondent No.4-Society under section 11 of the MOFA. Petitioner has raised pleadings to demonstrate as to how the title of Respondent No.5 was imperfect which could not have been conveyed in favour of the Respondent No.4-Society under section 11 of the MOFA. That Respondent No.5 unauthorizedly gave consent for issuance of certificate of unilateral deemed conveyance in favour of Respondent No.4-Society.
5 The Competent Authority passed order dated 16 March 2012 granting unilateral conveyance in respect of land admeasuring 4342.06 square meters at CTS No.143 (part) at village Vile Parle, Mumbai Suburban District alongwith building constructed thereon in favour of Respondent No.4-Society subject to the three conditions: (a) Society getting the Agreement dated 24 February 1994 executed by M/s. B.V. Paranjape HUF in favour of Respondent No.5 duly stamped and registered, (b) production of all 36 flat purchase agreements with proof of registration; and (c) preparation of separate property card in respect of area to be transferred in favour of the Society after deletion katkam Page No. 6 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 7/24 903_wpl_23095.21_J_os(1).doc area of 199.84 square meters transferred in the name of Government of Maharashtra.
6 It appears that the Respondent No.4-Society made an application dated 25 September 2013 to the Competent Authority for deletion of condition Nos. (a) and (b) and expressing willingness for deletion of area of 199.84 square meters out of total area of 4541.90 square meters. The Competent Authority allowed Respondent No.4- Society's application dated 25 September 2013 and issued communication dated 19 October 2013 to the Sub Registrar directing condoning condition No.(a) on account of lack of any obligation on the part of the Society to register agreement executed between M/s. B.V. Paranjpe HUF and Respondent No.5. The Competent Authority took on record copies of Index-II extarcts in respect of all the 36 flat purchase agreements and condoned condition No.(b). So far as condition No.(c) is concerned it recorded Society's consent for deletion of area of 199.84 square meters transferred to the Government. The Competent Authority accordingly deleted all the three conditions in the certificate of unilateral deemed conveyance.
7 Petitioner has filed the Petition challenging the order of the Competent Authority dated 16 March 2012 together with the katkam Page No. 7 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 8/24 903_wpl_23095.21_J_os(1).doc conditional certificate of deemed conveyance and also the communication dated 19 October 2013 deleting the three conditions. During pendency of the present Petition, Petitioner Vasundhara Dhananjay Dongre has passed away and her legal heirs being Petitioner Nos.1A, 1B and 1C are prosecuting the present Petition through their constituted attorney Mr. Nilesh Muzumdar who was also the constituted attorney of original Petitioner Vasundhara Dhananjay Dongre.
8 Mr. Patwardhan, the learned Counsel appearing for the Petitioners would submit that the certificate of unilateral deemed conveyance issued by the Competent Authority vide order dated 16 March 2012 is ex-facie illegal and is liable to be set aside as the same is issued in erroneous exercise of jurisdiction. That the enquiry to be conducted by the Competent Authority under provisions of sub-sections 3 and 4 of section 11 of MOFA includes verification of all relevant documents. That therefore it was incumbent for the Competent Authority to first verify whether Respondent No.5 had acquired any title in the writ land which could have been transferred by the Competent Authority in favour of Respondent No.4-Society. Inviting my attention to condition No.(a) in the order dated 16 March 2012, Mr. Patwardhan would submit that the Competent Authority entertained a katkam Page No. 8 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 9/24 903_wpl_23095.21_J_os(1).doc doubt in his mind about the title of Respondent No.5, which is a reason why he directed the Society to get the Agreement dated 24 February 1994 executed between M/s B.V. Paranjape HUF and Respondent No.5 duly stamped and registered. That Respondent No.4-Society did not produce all relevant documents so as to prove title of Respondent No.5 which could be conveyed in favour of the Society. That Petitioner has a share in the writ land and the same is illegally conveyed to the Respondent No.4-Society behind the back of the Petitioner and without the consent.
9 Mr. Patwardhan further submit that the Competent Authority did not issue any notice to the Petitioner, who is one of the land owners and the order of deemed conveyance in absence of grant of opportunity of hearing mandated under sub-section 4 of section 11 of the MOFA is clearly vitiated. That the impugned order is an outcome of unauthorized consent given by the Respondent No.5, when in fact Petitioner, being a co-owner, was neither heard nor had given consent for conveyance of land in favour of Respondent No.4-Society.
10 Mr. Patwardhan would further submit that Competent Authority illegally exercised power of review by reviewing the order dated 16 March 2012. That the subsequent communication dated 19 October katkam Page No. 9 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 10/24 903_wpl_23095.21_J_os(1).doc 2013 materially changes the original order dated 16 March 2012 and could only have been passed by an authority vested with jurisdiction to review its order. That MOFA does not confer power on the Competent Authority to review its order. In support of his contention Mr. Patwardhan would rely upon the judgment of this Court in Kashish Park Realty Pvt. Ltd. and Anr. vs. State of Maharashtra and others, 2021 (3) Mh.L.J. 778.
11 Mr. Patwardhan would further submit that the Competent Authority could not have condoned the conditions imposed vide order dated 16 March 2012. That the Society failed to submit copies of registered agreement in respect of 36 flat purchasers and what was submitted only copies of Index-II extracts. That thus there is admitted violation of sub-section 3 of section 11 of the MOFA. That the condition of payment of stamp duty and registration of Agreement dated 24 February 1994 executed between M/s. B.V. Paranjape HUF and Respondent No.5 was a valid condition imposed by the Competent Authority, which has been illegally deleted. That the condition was imposed after noticing invalid acquisition of title by Respondent No.5 in respect of the writ land that unless the title of Respondent No.5 is perfected, nothing could have been conveyed in favour of Respondent No.4-Society.
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is registered on the basis of modified certificate of unilateral deemed conveyance in violation of provisions of sub-section 5 of section 11 of the MOFA. That Petitioner was not issued notice before registration of the deed and she is also covered by definition of term 'promoter' and therefore notice to her under sub-section 5 of section 11 of the MOFA was mandatory. Here again, Mr. Patwardhan would rely upon judgment of this Court in Kashish Park Realty (supra).
13 Mr. Patwardhan would further submit that reliance by Respondents on the so-called relinquishment deed allegedly executed by Petitioner is totally misplaced. That the said relinquishment deed is a forged document, the same is shown to have been executed on 16 November 1979, reflecting original Petitioner's name as Vasundhara Dhananjay Dongre when in fact her maiden name was Jayashree Moreshwar Paranjape and that she became 'Vasundhara' only after her marriage. Relying on the judgment of the Apex Court in Yellappa Uma Maheswari and Another vs. Buddha Jagadheeswararao and Anr. (2015) 16 SCC 787, Mr. Paranjape would submit that every relinquishment of immovable property made in writing requires compulsory registration. He would therefore submit that the so-called relinquishment deed dated katkam Page No. 11 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 12/24 903_wpl_23095.21_J_os(1).doc 16 November 1979 does not have any effect on the share of the original Petitioner.
14 The Petition is opposed by Respondent No.4-Society through Mr. Shanay Shah, the learned counsel. He would pray for dismissal of the Petition on account of gross delay and laches in filing the same. That the original order of deemed conveyance was passed on 16 March 2012 and the conditions were deleted on 19 October 2013, whereas the Petition is filed after eight long years on 20 September 2021. He would also accuse Petitioner of gross suppression of facts, as, according to him, she did not disclose execution of deed of relinquishment dated 16 November 1979 in the Petition.
15 Mr. Shah would further submit that the Petition filed by the Petitioner is in the nature of title suit which is premised on the allegation of fraud allegedly practiced by family members of Paranjape family. That the order of the Competent Authority cannot be adjudged on the basis of claim of title raised by the Petitioner, for which she will have to file a civil suit. That the scope of enquiry under section 11 of the MOFA is extremely limited. In support of his submission Mr. Shah would rely upon judgment of this Court in Mazda Construction katkam Page No. 12 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 13/24 903_wpl_23095.21_J_os(1).doc Company and others vs. Sultanabad Darshan Co-operative Housing Society Limited and others, 2012 SCC OnLine Bom 1266.
16 Inviting my attention on relevant causes of agreement executed under section 4 of the MOFA, Mr. Shah would submit that the promoter was under obligation to convey his right, title and interest in the land and building as per clauses 17 and 18 of the MOFA Agreement. He would submit that the two erroneous conditions imposed by the Competent Authority in the original order dated 16 March 2012 have been rightly deleted as the Society was not expected to get the document between the M/s. B.V. Paranjape HUF and Respondent No.5 stamped or registered. That the Society had submitted copies of Agreements in respect of all the 36 flat purchasers and once again had produced Index- II extracts in support of registration of such Agreements. That therefore the Competent Authority has rightly deleted the conditions from certificate of unilateral deemed conveyance. That deletion of condition does not mean review of the order. He would pray for dismissal of the Petition.
17 Mr. Godbole, the learned senior advocate appearing for Respondent Nos.7 and 8 would also oppose the Petition submitting that, katkam Page No. 13 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 14/24 903_wpl_23095.21_J_os(1).doc in their capacity as promoters, Respondent Nos.7 and 8 are under obligation under section 11 of the MOFA to convey their right, title and interest in land and building in favour of the Society. He would submit that what is raised by the Petitioner is a pure title dispute which cannot be adjudicated in challenge raised to certificate of deemed conveyance issued under section 11 of the MOFA. He would pray for dismissal of the Petition.
18 Mr. Jain, the learned Counsel appearing for the Intervener in Interim Application No.151 of 2023 would submit that the Intervener- Spartek Properties & Securities Private Limited has purchased some portion of the conveyed land from Respondent No.4-Society. That said portion of the land is conveyed by the Respondent No.4-Society in favour of the Intervener on the strength of certificate of deemed conveyance granted by the Competent Authority. He would submit that the belated claim now filed by Petitioner would affect the rights of the Intervener in respect of its title. He would therefore pray for dismissal of the Petition.
19 Interim Application No.159 of 2023 is filed on behalf of 19 individuals claiming to be the occupiers of structure Sandam Chawl located on the land conveyed to the Respondent No.4-Society.
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Therefore, they have sought to intervene in the present Petition by filing Interim Application No.159 of 2023.
20 Rival contentions of the parties now fall for my consideration.
21 Petitioner is aggrieved by grant of certificate of deemed conveyance of land admeasuring 4342.06 square meters bearing CTS No.143 (part) at village Vile Parle, Taluka Vile Parle, Mumbai Suburban District on the ground that the same is granted without hearing her. She claims share in all properties belonging to Paranjape family, which includes land bearing CTS No.143 (part), which is conveyed to the Respondent No.4-Society. Before I go into the merits of the claim of the Petitioner, the objection of delay and laches raised by the Respondents needs to be considered. The order granting conditional certificate of unilateral deemed conveyance was passed on 16 March 2012. The conditions were later removed by communication dated 19 October 2013. As a matter of fact, the cause of action for the Petitioner arose on 16 March 2012 when the Registrar decided to convey the land in favour of the Society. The grievance of the Petitioner is not really concerning removal of conditions, but conveyance of land, in which she allegedly owns a share. Therefore, she ought to have challenged the order dated 16 March 2012 within a reasonable time. Even if the cause is katkam Page No. 15 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 16/24 903_wpl_23095.21_J_os(1).doc treated to have arisen on 19 October 2013, still the Petition filed on 20 September 2021 is grossly barred by delay and laches.
22 Petitioner is aggrieved by denial of a share in various properties owned by Paranjape family. Respondent No.5-Developer claims rights in the land bearing CTS No.143 (part) on the strength of Agreement dated 24 February 1994 executed by M/s. B.V. Paranjape HUF. It is Petitioner's contention that the said document dated 24 February 1994 does not have the effect of conveying Petitioner's share in favour of Respondent No.5. If that is the case, Petitioner ought to have challenged the said document dated 24 February 1994 by filing a civil suit. Petitioner has admittedly slept over her alleged rights. She allowed the land to be developed by Respondent No.5. She is the resident of Mulund, Mumbai and ought and must have noticed construction of the building coming upon the land. The occupancy certificate in respect of the building was issued on 25 September 1998 and building completion certificate was issued on 31 August 1999. She however failed to take any steps in respect of the construction carried out on the land, in which she allegedly claims rights. This conduct on the part of the Petitioner is required to be taken into consideration in addition to delay of eight long years in filing the Petition. I am of the view that apart from delay, katkam Page No. 16 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 17/24 903_wpl_23095.21_J_os(1).doc Petitioner is clearly guilty of laches. On this ground alone the Writ Petition deserves to be dismissed.
23 It appears that in pursuance of the certificate of deemed conveyance, the deed of conveyance has been executed and registered on 31 December 2013. Furthermore, third party rights are created by the Society by executing registered deed of conveyance dated 30 September 2016 in favour of M/s. Spartek Properties and Securities Private Limited. These are further reasons why interference in the order of deemed conveyance cannot be made at the instance of the Petitioner at such a belated stage.
24 Even if the claim of the Petitioner is to be considered on merits, by ignoring the objection of delay and laches, I am of the view that no case is made out by the Petitioner for interference in the order dated 16 March 2012 and communication dated 19 October 2013. Petitioner cannot seek establish her title by filing a Petition under Article 227 of the Constitution of India under the guise of challenging a certificate of unilateral deemed conveyance issued by the Competent Authority under section 11 of the MOFA. Perusal of pleadings raised by Petitioner(s) in the Petition, in great details, would indicate that the Petition is in the nature of a suit for title. Respondents rely upon relinquishment deed katkam Page No. 17 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 18/24 903_wpl_23095.21_J_os(1).doc dated 16 November 1979 by which Petitioner allegedly relinquished her rights in respect of various properties including land bearing CTS No.143. On the contrary, it is the case of Petitioner that the said document is forged and fabricated. This is something which only a civil court can decide and these issues cannot be raised in a Petition filed for challenging the certificate of unilateral deemed conveyance.
25 The contentions of the Petitioner that the scope of enquiry under provisions of sub-sections 3 and 4 of section 11 of the MOFA includes verification of the documents of title cannot be accepted. Use of the words "after verifying the authenticity of the documents submitted "
would not mean an enquiry into title of the promoter. The scope of enquiry by the Competent Authority under section 11 of the MOFA is restricted to conveyance of promoter's right, title and interest in the land and building. Whether promoter has validly acquired title in respect of land is something which would be outside the scope of enquiry under section 11 of the MOFA. That issue can only be decided in a civil suit. Useful reference in this regard can be made to the observations of this Court in paragraph 20 of its judgment in Mazda Construction Company & Ors. (supra) in which it is held as under:
"20. To my mind, reading of Sections 10 and 11 together with Section 5A would make it amply clear that what is to be performed by the katkam Page No. 18 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 19/24 903_wpl_23095.21_J_os(1).doc Competent Authority is a duty and obligation which the promoter is to perform in law. That is to convey the title and execute the documents according to the agreement. If that is the duty which is to be performed by the promoter, but which he fails to perform, then, the Competent Authority steps in to fulfil it. That is a duty towards the flat purchasers and which duty cannot be avoided except at the cost and pains of legal proceedings including a criminal prosecution. In these circumstances and when sections 10 and 11 are read together and harmoniously with the preceding sections including those which contain the particulars of the agreement, then, it becomes absolutely clear 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. Therefore, it cannot be said that an unilateral deemed conveyance conveys something more than what belongs to the Promoter. Section 11(1) provides for conveyance of Promoter's right, title and interest in the land and building as is clear from the words "his right, title and interest...." appearing therein. I am not in agreement with Mr. Samdani that there are no guidelines guiding and enabling the Competent Authority to grant a deemed conveyance and therefore, the powers are likely to be abused or exercised arbitrarily in every such case. There are inbuilt checks and safeguards inasmuch as what is to be issued is a certificate entitling a unilateral deemed conveyance. It is not a document which stands alone or is a distinct transaction. It is a grant or conveyance in terms of what the agreement between parties stipulates and provides for being conveyed to the flat purchasers. Therefore, the Applicant is permitted to apply to the Competent Authority u/s 11(3) and such application is to be katkam Page No. 19 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 20/24 903_wpl_23095.21_J_os(1).doc accompanied by true copies of the registered agreements for sale, executed by the Promoter with each individual member/flat purchaser and other relevant documents. It is to further that and to insist on the promoters fulfilling their obligations within the prescribed period, but noticing that their failure has resulted in hardship to flat purchasers, that the Legislature has stepped in. To my mind, this is not a power which can be exercised by the Competent Authority in ignorance of or by brushing aside the earlier provisions and contents of the agreement with the flat purchasers. Equally, the Competent Authority has to take into consideration the contents of other relevant documents."
26 I am therefore of the view that contention of Mr. Patwardhan that the Competent Authority ought to have verified the document of title of the promoter (Respondent No.5) cannot be accepted. In fact, condition No.(a) stipulated by the Competent Authority for payment of stamp duty and registration of instrument dated 24 February 1994 executed between M/s. B.V. Paranjape HUF and M/s. Paranjape Land Developers Private Limited was clearly erroneous. The said condition has rightly been deleted by subsequent communication dated 19 October 2013. While conducting limited enquiry under section 11 of the MOFA, the Competent Authority is not supposed to ensure that the title of the promoter is perfected by removal of defects, if any. Whatever is the title of the promoter the same is required to be conveyed to the katkam Page No. 20 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 21/24 903_wpl_23095.21_J_os(1).doc Society as per provisions of agreement executed under section 4 of the MOFA.
27 Contention of Mr. Patwardhan that issuance of communication dated 19 October 2013 tantamount to exercise of power of review appears to be misplaced. The Competent Authority has not overturned its order dated 16 March 2012. The order prescribed three conditions subject to which deemed conveyance was granted. I have already held that prescription of condition No.(a) about payment of stamp duty and registration on instrument dated 24 February 1994 was erroneous. The same was otherwise required to be deleted and has rightly been deleted by the Competent Authority by subsequent communication dated 19 October 2013. So far as condition No.(b) is concerned, the same merely directed the Society to submit copies of Agreements executed in respect of 36 flats alongwith proof of registration thereof. In ordinary course, the Competent Authority ought to have completed this formality before issuance of the certificate of deemed conveyance. The Society immediately submitted certified copies of agreements of flat purchasers alongwith copies of the Index-II extracts vide a letter dated 25 May 2013. Therefore, the condition No.(b) has rightly been deleted by communication dated 19 October 2013. About condition No.(c), the Society expressed its consent for deletion of area of 199.84 square meters katkam Page No. 21 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 22/24 903_wpl_23095.21_J_os(1).doc which was already transferred to the Government of Maharashtra. In fact, the earlier certificate dated 16 March 2012 sought to convey land excluding area of 199.84 square meters and therefore prescription of condition No.(c) was also quite unnecessary. Therefore condition No.(c) has rightly been deleted by communication dated 19 October 2013. The Competent Authority had committed an error in prescribing conditions for grant of certificate of deemed conveyance. Mere removal of those conditions from certificate would not amount to review of the order. Therefore, reliance of Mr. Patwardhan on judgment of this Court in Kashish Park Realty Pvt. Ltd. & another (supra) is totally misplaced.
28 So far as the objection of non-issuance of notice to the Petitioner is concerned, I do not see any reason why notice to the Petitioner was necessary. Section 11 (4) of the MOFA provides for grant of reasonable opportunity of being heard to the promoter. In the present case, the Agreements for Sale of flats were executed between M/s. B.V. Paranjape HUF in capacity as the owners, Paranjape Land Developers Private Limited in capacity as organizers and the flat purchasers. Both M/s. B.V. Parajpae HUF as well as Paranjape Land Developers Private Limited were impleaded in the application filed by the Respondent No.4-Society under section 11 of the MOFA. If Petitioner was excluded from M/s. B.V. Paranjape HUF and wanted to assert any independent katkam Page No. 22 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 23/24 903_wpl_23095.21_J_os(1).doc right contrary to the rights of HUF, it was for her to do the same by instituting civil suit. In section 11 MOFA proceedings, it is not necessary that the Competent Authority undertakes an enquiry about existence of all owners of the land who granted development rights to the promoter and grant an opportunity to each such owner. The development rights in respect of the land are claimed on the strength of the instrument dated 24 February 1994, which has not been set aside in any manner till date. Therefore, the order of deemed conveyance is not rendered invalid on account of non-issuance of notice to the Petitioner. Applying same logic, the contention with regard to violation of provisions of sub-section 5 of section 11 of the MOFA about requiring issuance of separate notice before registration of unilateral deed of conveyance deserves to be repelled.
29. Some structure occupiers have filed applications for intervention in the Petition seeking to assert their rights in resect of land conveyed in Society's favour. In my view, those rights cannot be sought to be agitated in this Petition. Society has become owner of the conveyed land. If the structure occupiers claim any rights on account of alleged occupation of their structures, they will have to agitate the same separately. Therefore, if the Interveners/Applicants in Interim Application No.151 of 2023 and Interim Application No.159 of 2023 have katkam Page No. 23 of 24 12 March 2024 ::: Uploaded on - 12/03/2024 ::: Downloaded on - 13/03/2024 10:31:35 ::: k 24/24 903_wpl_23095.21_J_os(1).doc any grievance in respect of their rights as structure occupiers, they will have to agitate the same separately.
30. Considering overall conspectus of the case, I am of the view that no case is made out by Petitioner by interference in the impugned orders dated 16 March 2012 and 19 October 2013. The Writ Petition being devoid of merits, is dismissed without any orders as to costs. Rule is discharged.
31 In view of the disposal of the Writ Petition, nothing would survive in Interim Application Nos.151 of 2023, 159 of 2023 and Interim Application (L) No.2583 of 2023 and all the three Interim Applications are accordingly disposed of.
(SANDEEP V. MARNE, J.) 32 After the judgment is pronounced, the learned counsel appearing for Petitioner would pray for continuation of ad-interim relief for a period of eight weeks. Request is opposed by the learned counsel appearing for Respondent No.4-Society. Considering the findings recorded in the judgment, request for continuation of ad-interim relief is rejected.
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