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ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3134 OF 2022
Jalaram Ashish Co-operative Housing
Society Ltd. } ..Petitioner
Deputy Registrar and Ors. } ..Respondents
Mr. Karl Tamboly with Ms. Nikita Vardhan and Mr.Vishal Tiwari i/ by. Kanga & Co., for the Petitioner.
Ms. Uma Palsuledesai, AGP with Mr. Suraj Gupte, AGP for State-
Krishnappa, for Respondent No.2.
ORAL JUDGMENT
1) Rule. Rule made returnable forthwith. With consent of the learned counsel appearing for parties, Petition is taken up for hearing and disposal.
2) The challenge in the present petition is to the Order dated 7 October 2015 passed by, and to the Certificate of Unilateral Deemed ____Page No. 1 of 12____ Conveyance dated 7 October 2015 issued by, the Competent Authority granting conveyance of land admeasuring 3580 sq.mtrs in City Survey No.1118(Part), 1119(Part), 1120, 1120/1 to 8, Village-Mulund (West), Taluka-Kurla, District-Mumbai Suburban in favour of the Petitioner- Society. Though unilateral deemed conveyance has been granted in favour of the Petitioner-Society, it is aggrieved by non-conveyance of the entire land admeasuring 6685.05 sq.mtrs covered by the agreements executed under Section 4 of the Maharashtra Ownership of Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act, 1964 (MOFA Act) with the flat purchasers. With this limited grievance, the present Writ Petition is filed.
3) I have heard Mr. Tamboly, the learned counsel appearing for the Petitioner and Mr. Kini, the learned counsel appearing for Respondent Nos.2(a) to 2(c).
4) Before going into the merits of the petition, the objection of delay and laches raised by Mr. Kini needs to be considered first. The order granting unilateral deemed conveyance is passed by the Competent Authority on 7 October 2015, whereas the petition seems to have been filed 7 years later in February 2022. The delay in challenging the Order dated 7 October 2015 is no doubt inordinate. In its Petition, Petitioner has given following explanation in respect of the delay in filing the petition:
24. The Petitioner has endeavored to approach this Hon'ble Court as expeditiously as possible. The Impugned Order was passed on 7th ____Page No. 2 of 12____ October 2015. However, at the time, the then constituted Managing Committee of the Petitioner Society was not functioning full-fledged owing to certain internal issues within the members and hence, it did not hold the requisite meetings nor were carrying on the work in an efficient manner. The then constituted Committee failed to do any of the Petitioner Society's work including challenging the Impugned Order passed in the matter. Furthermore, at the relevant time certain members started tendering their resignation from their posts of the Managing Committee. In view of the said circumstances prevailing, the then Chairman of the Managing Committee of the Petitioner was constrained to submit the resignations of the members of the Managing Committee to the Deputy Registrar of Co-operative Societies – "T" Ward and further informing him that the then existing Managing Committee stands dissolved and that the Deputy Petitioner Society. A copy of the letter dated 26th October 2017 addressed by the then Chairman of the Petitioner Society to the Deputy Registrar alongwith the resignations of the then members is annexed hereto as Exhibit "I". Therefore, the working of the Petitioner Society affected drastically. Due to the non-availability of the Managing Committee of the Petitioner Society, there was a legal disability and hence, the Petitioner could not take the requisite steps.
25. After the receipt of the said letter dated 26th October 2017 from the Petitioner Society, the Deputy Registrar appointed one Mr. S. M. pKakde to take over the management of the Petitioner Society and Mr. Kakde took charge as is evident from the letters dated 9th November 2017 and 14th November 2017. Hereto annexed as Exhibit "J" and "K" are copies of the letters dated 9th November 2017 and 14 November 2017.
26. Thereafter, Mr. Kakde initiated the process of election to inter alia elect the new members of Managing Committee and the process was completed by 25th February 2018. A lot of time elapsed in the entire election process. The members of the new Managing Committee were in the -process of taking charge of the Petitioner Society's work. Since there was a huge back log of work, it took some time for the members of the new Managing Committee to collate various documents and other details required in respect thereof. For the present matter also, the Petitioner Society endeavoured to collate all the documents and thereafter, handed over the same to its Advocates for their opinion and advise. However, since the Society's Committee was not functioning in ____Page No. 3 of 12____ an efficient manner it took some time for the Petitioner to collate the requisite documents. The Petitioner's Society's members ensured that the same was done as expeditiously as possible. Most of the documents to be filed in the present matter relate to an earlier period and hence, to collate the same took a long period of time. Certain documents were not traceable and therefore, the members of the Managing Committee had to take a lot of efforts to find them. A considerable time elapsed in doing the same. The new Committee also took some time to familiarise itself with the documents in relation to the above matter.
27. Further, outbreak of the COVID-19 pandemic caused a severe disturbance in the day to day functioning of the people which added to the woes of the Society. During the year 2019-20, there erupted the COVID-19 pandemic and a National lockdown was imposed by the Government of India and Government of Maharashtra. Hence, it took the Petitioner some time to approach this Hon'ble Court. Under the then prevailing circumstances it was difficult for the members of the Petitioner Society to collate documents, co-ordinate with its Advocates and file the present Writ Petition.
28. The Petitioner submits that in light of the outbreak of the COVID-19 pandemic, the Hon'ble Supreme Court has in suo moto Writ Petition (Civil) No. 3 / 2020 vide Orders dated 23rd March 2020, 6th May 2020, 10th July 2020, 8th March 2021, 27th April 2021, 23rd September 2021 and 10th January 2020 took cognizance for extension of limitation period in exercise of power conferred upon under Article 142 read with Article 141 of the Constitution of India and held that the period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended. Therefore, the period from 15th March 2020 until the filing of this Petition is excluded to compute the limitation period vide the Orders passed by the Hon'ble Supreme Court.
29. A perusal of the above referred events which have so far transpired abundantly indicates that the time taken since he passing of the Impugned Order by the Petitioner in filing of the present Petition is not intentional and / or deliberate and the same was not within their control. It was only on account of the difficulties faced by the Petitioner Society coupled with the COVID-19 Pandemic as enumerated hereinabove that it took some time for the Petitioner to file the present Petition. There was no intentional or deliberate delay ____Page No. 4 of 12____ on the part of the Petitioner but it was only due to the then prevailing circumstances that it took some time for the Petitioner to collate the documents and file the present Writ Petition. The Petitioner Society has endeavoured to approach this Hon'ble Court as expeditiously as possible.
30. The Petitioner further submits that as per section 11 of MOFA the Promoter is a under statutory obligation to execute conveyance in favour of the Petitioner Society within the prescribed time period. The Promoters have however, failed and neglected to do the same. Further, as per individual Flat Purchase Agreements the Petitioner Society is entitled to a total conveyance of 6,080 square meters. Therefore, failure on the part of the Respondent Nos.[2] to 4 to execute conveyance of the total area of 6,080 square meters in favour of the Petitioner- Society till date constitutes a continuous wrong/violation on part of the Promoters and hence, such a continuous wrong will be covered under the provisions of section 22 of Limitation Act, 1963. The present petition is therefore, file within time and not barred by the law of limitation.
5) In ordinary course, this Court would be loathe in ignoring such inordinate delay of 7 years. However, considering the fact that there was disturbance in the management of affairs of the Society coupled with Covid-19 pandemic outbreak, in my view, though there is some delay in filing the petition, Petitioner society cannot be held guilty of laches. The Society was prevented from taking timely steps to challenge the Order dated 7 October 2015 on account of improper functioning of the Managing Committee of the Society and appointment of an Administrator to manage its affairs. I am therefore inclined to entertain the petition on merits. ____Page No. 5 of 12____ 6) Perusal of the impugned Order dated 7 October 2015 would indicate that the Competent Authority has granted conveyance in respect of the land admeasuring 3580 sq. mtrs in favour of the Petitioner-Society. The total area of the land in respect of which MOFA agreement is executed in 6685 sq.mtrs. However, the Competent Authority has proceeded to deduct area admeasuring 2500 sq.mtrs. covered by seven structures on the plot.
7) If the Agreements executed with the flat purchasers under Section 4 of the MOFA are perused, it is seen that the promoter agreed to convey to the cooperative Society, the land described in the first schedule to the Agreement. In this connection, relevant Clauses-47 and 48 of the MOFA Agreement read thus:
47. The Party of the Second Part shall at no time be entitled to demand any separate Deed of Conveyance or any other assurance as to title to the said flat/shop/garage covered open parking space in favour of the Party of the Second part and necessary Deed of Conveyance and other assurance as to title to the said Property (including the said flat/shop/garage/covered/open parking space) shall be executed by the Party of the First part in favour of a Cooperative Society/Limited or Association of persons as hereinafter provided.
48. Subject to the provisions contained in clause-hereof after the building is completed and ready and fit for occupation and after the Society or limited company is incorporated and all flats/shops/garages/covered/open parking spaces in the said building shall have sold and disposed off by the Party of the First Part and after the Party of the Fist Part has received all dues receivable by them from all the flats/shops/garages/covered/open ____Page No. 6 of 12____ parking spaces holders etc. the party of the First Part shall execute a proper Deed or Conveyance or any other suitable document of transfer in favour of such society or Limited Company or the Association as herein provided of the said land more particularly described in the First Schedule hereunder written together with the building erected thereon and shall along therewith handover to such body of purchasers a complete account concerning the deposits received by them and the utilisation thereof alongwith the balance if any without interest. The Party of the Second Part shall accept the account so submitted as correct, and the Party of the Second Part of the Co-operative Society or Limited Company or the Association as aforesaid shall not be entitled to dispute the correctness thereof and/ or to go behind the accounts so submitted.
8) The first schedule of the Agreement reads thus: ALL THOSE pieces or parcels of land or ground being plots Nos.1124-1125, 1126 and 1127 bearing survey No.1000 (part) and 336 (part) admeasuring abut 7995 sq.yds viz. 6686.05 sq.Meters or there abouts together with seven residential buildings, dwelling Units, and structures therein and situate at Devi dayal Road, Mulund (West), Bombay-400 080 in the registration District and Sub District of Bombay and Bombay Suburban and Bounded as follows:- -- --
9) Thus, under Clauses-47 and 48 read with description of the land in the first schedule, it is clear that the promoter undertook to convey to the Society, the land admeasuring 6685.05 sq. mtrs together with seven residential buildings/dwelling units and structures standing thereon. The promoter did not carve out the land covered by the said seven structures from the land to be conveyed to the Society. The ____Page No. 7 of 12____ promoter specifically agreed to convey the entire land admeasuring 6685.05 sq.mtrs to the Society.
10) It must be observed here that there is a slight error on the part of the Competent Authority in assuming the area of the entire plot as 6080.30 sq. mtrs when in fact the same is 6685.05 sq.mtrs.
11) The statutory framework of MOFA is such that the promoter is under obligation to convey his right, title and interest in the land and the building in favour of the Society in accordance with the agreements executed under Section 4 of MOFA. Therefore the remit of enquiry before the Competent Authority includes examination of the clauses of the Agreements executed with the flat purchasers under Section 4 of MOFA to find out what area is agreed under the Agreement to be conveyed to the flat purchasers. In the present case, the Competent Authority ought to have taken into consideration Clauses-47 and 48 together with first Schedule of MOFA Agreement for ascertainment of the exact area which was required to be conveyed to the Petitioner-Society. There is nothing in the Agreement, under which the area covered by the seven structures was to be deducted from the land to be conveyed to the Society. In my view, therefore the Competent Authority has committed a manifest error in deducting the area of 2500 sq.mtrs covered by the seven structures while determining the right of the Society for conveyance of the land in accordance with the Agreement executed under Section 4 of MOFA. ____Page No. 8 of 12____ 12) Mr. Kini has sought to contend that Respondent Nos.2(a) to 2(c) are the owners in respect of the entire plot. That they had executed a mere Agreement for Sale in favour of the Developer- Respondent No.3 and the said Agreement has not fructified into a conveyance. He would submit that Respondent Nos.2(a) to 2(c) have already terminated the Agreement for Sale executed in favour of Respondent No.3-Developer and accordingly it is Respondent Nos.2(a) to 2(c) who are actually entitled to the excluded portion of the land from the deemed conveyance order. Mr. Kini has submitted that if the Society has any objection to the area conveyed by the Certificate of deemed conveyance, the correct remedy for the Society is to file a Civil Suit.
13) While Mr. Kini is not entirely wrong in contending that in respect of any dispute with regard to the actual area to be conveyed under a certificate of deemed conveyance issued under Section 11 of MOFA, the remedy for the affected party is to file a civil suit. It has been repeatedly held by this Court that certificate of deemed conveyance is not determinative of rights and entitlement of parties to the land conveyed. Reference in this regard can be made to the judgments of this Court in Mazda Constructions and Ors. V/s. Sultanabaad Darshan Co-op. Hsg. Society[1], Acme Enterprises and Anr. V/s. Deputy Registrar, Co-op. Societies and Ors.[2] and
2 2023 4 AIR Bom.R.817 ____Page No. 9 of 12____ Tirupati Shopping Centre Premises Co-operative Soc. Ltd. V/ s. Shabayesha Construction Co. Pvt. Ltd.[3]
14) At the same time, it is an obligation imposed on the Competent Authority under Section 11 of MOFA to do something which the Developer fails to do. This principle is recognized by judgment of Single Judge of this Court in Majda Constructions (supra). As per the MOFA agreement executed under Section 4, it was promoter’s obligation to convey the entire land admeasuring 6685.05 sq.mtrs. In my view therefore, the Society cannot be driven to litigation in the form of filing Civil Suit merely because the Competent Authority has failed to do something which it is statutorily obligated to do. If Respondent Nos.2(a) to 2(c) have any grievance in respect of the land to be conveyed to the Society under the Agreement, it is for Respondent Nos.2(a) to 2(c) to agitate their rights by filing a civil suit.
15) Also of relevance is the fact that the promoter in the present case is not opposed for conveyance of the entire land admeasuring 6685.05 sq mtrs. The parties which are objecting to such conveyance are the original owners i.e. Respondent Nos.2(a) to 2(c), who had agreed to sell the entire land measuring 6685.05 sq mtrs to the promoter and on the strength of which, the promoter got the plans sanctioned in respect of the entire land and constructed the building. Perusal of the area statement produced by Mr. Tamboly would indicate that the area of entire Plot of 6685.05 sq mtrs was taken into consideration while doing 3 (2021) 6 Mh.L.J. 557 ____Page No. 10 of 12____ the FSI computation. Now Respondent No. 2(a) to 2(c) are seeking to agitate their entitlements to the land covered by the seven structures by taking a route through section 11 of MOFA. In my view, if Respondent Nos. 2(a) to 2(c) have any right in any portion of the land, the same cannot be decided through proceedings filed by the society under Section 11 of MOFA. They will have to adopt appropriate remedy to seek declaration about their alleged rights.
16) Therefore, in the facts and circumstances of the present case, it is not necessary to direct the Society to file Civil Suit for challenging the certificate of deemed conveyance for seeking conveyance of the balance area of land. Rather the Competent Authority needs to be directed to perform its statutory duty of conveying the promoter’s right title and interest in the land and building by taking into consideration agreements executed under Section 4 of MOFA.
17) The Writ Petition accordingly succeeds. The Order dated 7 October 2015 passed by the Competent Authority is set aside. Society’s application for issuance of certificate of unilateral deemed conveyance is restored on the file of the Competent Authority, who shall proceed to pass fresh order conveying the land as described in the first Schedule of Agreements executed with the flat purchasers under Section 4 of the MOFA. Parties shall appear before the Competent Authority on 15 April 2024 and obtain necessary orders. The Competent Authority shall make an endeavor to decide the remanded proceedings as expeditiously as possible, preferably within a period of six months. The ____Page No. 11 of 12____ Petitioner-Society would be at liberty to apply before the Competent Authority for amendment of its application by correcting the area sought to be conveyed is 6685.05 sq. mtrs instead of 6080.30 sq. mtrs.
18) With the above directions, the Writ Petition is allowed. Rule is made absolute.
19) After the order is pronounced, Mr. Kini prays for stay to the operation of the order for a period of 8 weeks. The request is opposed by Mr. Tamboly. Since this Court has granted time of six months to the Competent Authority to decide the remanded proceedings, Respondent Nos.2(a) to 2(c) have sufficient time to test this order. Accordingly, the request for stay of the order is rejected. [SANDEEP V. MARNE, J.] ____Page No. 12 of 12____