Janta Housing Private Limited v. State of Maharashtra & Ors.

3 (2015) 4 Mah LJ 867 4 2020 SCC OnLine Bom 11644: (2021) 3 Mah LJ 778 5 2022 SCC OnLine Bom 1660: (2023) 1 Mah LJ 526 6 (2012) 12 SCC 675: 2012 SCC OnLine SC 703

9 2015 SCC OnLine Bom 4889: 2015 (5) Mah LJ 318 the part of the Promoter and/or Developer in granting conveyance in favour of the Society and/or its members. He therefore submitted that the impugned Order be quashed and set aside.

(xi) As Mr. Saraogi, learned Counsel for Respondent No.3 has very heavily relied on the decision of a learned Single Judge in the case of ACME Enterprises v. Registrar, Coop. Societies 10, Mr. Daver, learned Counsel for the Petitioner submitted that the factual position in the decision of ACME Enterprises (supra) is distinct and different and therefore the said decision will not apply to the present case. He also submitted that the decision on which Mr. Saraogi has relied in the case of Shree Chintamani Builders v. State of Maharashtra 11 will also not apply to the present case. He submitted that as Respondent No.2 is the Competent Authority, it should have ensured that all the affected parties were made party to the said proceedings and that all of them should have been given a fair opportunity of hearing. He submitted that the Respondent No.2 should have verified all documents and considered all aspects. He submitted that the Petitioner is a necessary party and Respondent No.3 had impleaded the Petitioner as a party in an earlier Application and that the Petitioner has not been impleaded as a party only to avoid opposition in the fresh

Application. He submitted that in the Affidavit-in-reply dated 3rd July 2023 filed by Respondent No.3, it is admitted that the Petitioner is a Promoter/Developer in respect of the larger property and has rights with respect to the property for which the Deemed Conveyance has been granted and therefore the Petitioner should have been made a party to the said Deemed Conveyance proceedings.

(xii) Mr. Daver, learned Counsel for the Petitioner submitted that by virtue of the Consent Terms, the Petitioner has become entitled to develop the said property and therefore no Orders could have been passed without impleading the Petitioner. He submitted that even the original owners were also not served. He pointed out Clauses 5 and 6 of the Consent Terms dated 6th September 1978. He further submitted that the registration of the Deemed Conveyance dated 14th October 2022 will not affect the merits of the Writ Petition and this Court can consider the challenge to the impugned Order in respect of the registration of the Deemed Conveyance. He therefore submitted that the registration of the Deemed Conveyance is inconsequential. He submitted that the Respondent No.3-Society has incorrectly claimed Deemed Conveyance over 2,340 sq. mtrs. area and that the said area includes the building in question and the common open recreational space which forms a part of the larger property and which was for the use and enjoyment in common by residents of all the housing Societies on the larger property. (xiii)He pointed out the Order dated 4th August 2023 passed by a learned Single Judge of this Court in Writ Petition No.9597 of 2023 and submitted that the Order of Deemed Conveyance passed in favour of said Society has been set aside on the ground that the Petitioner has not been impleaded as party to the proceedings filed by New Jalpari Co-operative Housing Society Limited, and the matter is remanded back to the Competent Authority.

4. Mr. Saraogi along with Mr. Dubey, learned Counsels for Respondent No.3 raised the following contentions:-

(i) There are disputed questions of title or facts and therefore the Writ

(ii) On the basis of the decision of a learned Single Judge in ACME

Enterprises (supra) it is submitted that an inquiry contemplated under Section 11 of the MOFA in the Deemed Conveyance proceedings is limited in nature. Neither can the Competent Authority delve into the aspects of title, nor can the finding of the Competent Authority preclude a party from agitating the grievance as to the entitlement of the Respondent No.2 before the Civil Court. Thus, it is submitted that the ratio of ACME Enterprises (supra) is squarely applicable to the present case.

(iii) The buildings in question were constructed in the year 1992-93. As all the buildings are in dilapidated condition and require redevelopment and as the Respondent No.3-Society is in the process of re-developing the same, the order granting Deemed Conveyance has been challenged for the purpose of obstructing the process of re-development. He submitted that the Petitioner has in fact failed to perform its statutory duty under the MOFA of conveying the land and buildings in favour of the Respondent No.3-Society and therefore is not entitled to any relief in this Petition preferred under Articles 226 and 227 of the Constitution of India.

(iv) The Petitioner can file a Suit to establish its title to the property in question.

(v) By relying on the decision of the Supreme Court in Sundeep Kumar

Bafna v. State of Maharashtra 12 it is contended that an Order passed in Writ Petition No.9597 of 2023 cannot be a Judgment and in any case cannot be treated as a binding precedent.

(vi) It is submitted that in the facts and circumstances of this case, the

Petitioner and/or Respondent No.4 are not entitled to rely on the Consent Terms filed in the Bombay High Court Suit No.1210 of

1986. It is submitted that the said Consent Terms provide that the Petitioner and/or Respondent No.4 at the most, had a right to 12 MANU/SC/0239/2014: (2014) 16 SCC 623 develop the property only for a period of 12 years from the date of signing the Consent Terms. It is therefore submitted that rights of the Petitioner as well as of Respondent No.4 have extinguished and therefore neither the Petitioner nor the Respondent No.4 have any right in respect of the property in question.

(vii) Insofar as the contention raised by Respondent No.4 that

Respondent No.4 has not been served, it is submitted that Respondent No.4 is made party and address as available with the Respondent No.3 is given. It is submitted that the new committee of the Respondent No.3-Society filed the present Application seeking Deemed Conveyance and they were not aware about the said Suit filed in the year 2013 filed by the Petitioner and Respondent No.4 against the Respondent No.3-Society. (viii)It is further submitted that the decision on which Respondent No.4 relied has no Application to the present case. It is submitted that the Petitioner and Respondent No.4 are acting in collusion with each other.

5. Ms. Batra, learned Counsel for Respondent No.4 raised following contentions:

(i) Clause No.20 of the Sale Agreement provides that there shall be a single Co-operative Society of all the buildings on the larger property and that conveyance would be executed in respect of the said larger property and the buildings thereon, in favour of such a single Co-operative Society. Learned Counsel for Respondent No.4 further submits that the conveyance would be executed only after the entire larger property is fully developed.

(ii) She pointed out an Agreement executed in favour of the flat purchasers and submitted that the Respondent No.3-Society is not entitled to any rights. She submitted that the Respondent No.3 is causing obstruction in the use and enjoyment of the open recreational space which is adjacent to the building in question and that the same is meant for use by all the Societies in common. She submitted that the building in question and the open recreational spaces are separated by a compound wall and an entry gate has been provided through the said wall for access to the said open recreational space. Owing to the obstruction and encroachment caused by the Respondent No.3-Society in the common open space, the Petitioner and Respondent No.4 filed Suit No.763 of 2013 in the Thane District Court. The said Suit is pending before the Court. It is submitted that in view of the said Suit, an order of Deemed Conveyance should not have been passed.

(iii) It is submitted that Respondent No.3-Society incorrectly claimed

Deemed Conveyance over an area of 2,304 sq. mtrs. which includes the building in question and the common open recreational spaces that form a part of the larger property and which were for the use and enjoyment by all the Societies on the larger property in common.

(iv) The Respondent No.4 relied on the Order dated 30th January 2014

(v) It is submitted that the Respondent No.3 has not impleaded

Petitioner as a party to the Deemed Conveyance Application. It is submitted that both, the Petitioner and the Respondent No.4 are parties to the Suit i.e. Suit No.763 of 2013. Although Respondent No.4 has been impleaded as a party in the present Deemed Conveyance Application, however, the address mentioned is incorrect and therefore the notice of the same has not been received by the Respondent No.4. Therefore, it is submitted that the order granting unilateral Deemed Conveyance is passed ex parte and is in breach of principles of natural justice. Learned Counsel for Respondent No.4 has relied on the following decisions: [a] Tushar Jivram Chauhan (supra) [b] A.H. Wadia Trust (supra)

(vi) She submitted that the impugned Order is contrary to the

Government Resolution dated 22nd June 2018. She submitted that the impugned Order is contrary to the agreed terms between the parties. She pointed out the Sub-Development Agreement entered into between the Petitioner and Respondent No.4. She pointed out Clause Nos.7(e) and 16 of the Sub-Development Agreement and submitted that there shall be a Federation of all Sub-Developers and/or all buildings on the larger property and that all members of the Societies shall be required to be members of the said Federation of Societies. She pointed out Clause No.12 and particularly Clause No.20 of the Sale Agreements executed with flat purchasers. She submitted that the conveyance was to be executed only after the entire larger property was fully developed and therefore the impugned Order is liable to be quashed and set aside. She pointed out Clause No.14 of the Sale Agreement. She submitted that Respondent No.3 cannot claim grant of Deemed Conveyance over the common open space. She submitted that the impugned Order is contrary to the terms of the Sub-Development Agreement and also to the Sale Agreement entered into by the flat buyers. She therefore submitted that the Writ Petition be allowed by quashing and setting aside the impugned Order.

6. Thus, in view of the rival submissions, the following issues are required to be decided:

(i) Whether the impugned Order is liable to be quashed and set aside as the same has been passed without following the principles of natural justice?

(ii) Whether an area granted by the impugned Order in favour of

(iii) Whether the Government Resolution dated 22nd June 2018 has been duly followed?

(iv) What is the effect of the pendency of Suit No.763 of 2013?

7. At the outset, before considering the merits, it is to be noted that this Judgment was dictated in open Court on 11th December 2023 (partly), 13th December 2023 (partly), and dictation was completed on 19th December 2023.

8. The basic factual aspects in this case which are required to be taken into consideration while considering the challenge to the Order of granting the Deemed Conveyance, are as follows:

(i) Originally one Mr. Sitaram Devji Chaudhary, Mrs. Pushpa Sitaram

Chaudhary and Mr. Vikram Sitaram Chaudhary were the owners of and were well sufficiently entitled to the immovable property being Survey Nos. 20 to 25 (New) [Survey Nos. 159 to 164 (Old)] admeasuring 1,98,360 sq. mtrs. (approx.) situate at Village Bhayandar in Navghar Group Gram Panchayat, Jesal Park, Thane (East), Thane – 401 105 (“said Larger Property”). [Ref. Paragraph No.6(i) of the Writ Petition]

(ii) By virtue of the Consent Terms dated 06.09.1986 filed in Bombay

High Court No.1210 of 1986 read with Agreement for Development of property dated 01.06.1978 and writings dated 01.02.1978, the Petitioner became well and sufficiently entitled to the said Larger Property. The said Consent Terms were duly taken on record by the Hon’ble Court and an Order dated 06.09.1986 was passed in terms of the said Consent Terms. [Ref. Paragraph No.6(ii) of the Writ Petition]

(iii) Thereafter, vide Development Agreement dated 18.01.1990, the

Petitioner granted development rights to one M/s. Sheth Land Development Corporation (Respondent No. 4 herein) as Sub- Developers for developing a portion of the said Larger Property being Sector No. E/II/B admeasuring 2,375.46 sq. mtrs. situated lying and being at Village Khari in Navghar Group Gram Panchayat Taluka and District Thane (“the said Plot”) on the terms and conditions mentioned therein. [Ref. Paragraph No.6(iii) of the Writ Petition]

(iv) The building construction permission was given on 10th August

(v) On 18th February 1993, the Occupation Certificate was issued by

(vi) The flat purchasers purchased the respective flats in or about the year 1990 and the respective flat purchasers occupied their respective flats in or about the year 1993. The relevant Clauses of said Agreement executed with the flat purchasers are Clause Nos.1, 11A and 12A. The Respondent No.4 is referred as the “Promoter” in the said flat purchasers Agreement. The same are reproduced herein below for ready reference:

12. A Unless it is otherwise agreed to by and between the parties hereto the promoter shall, within two years of registration of the society or Limited Company, as aforesaid cause to be transferred to the Society or Limited Company all the right, title and the interest of the Vendor/Original Owner/Promoter and/or the owners in the aliquot part of the said land together with the building/s by obtaining/or executing the necessary conveyance of the said land (or to the extent as may be permitted by the authorities) and the said building in favour of such Society or Limited Company as the case may be such conveyance shall be in keeping with the terms and provisions of this Agreement.” (Emphasis added)

(vii) The Respondent No.3-Society was registered on 13th February

1998. (viii)The Society has a total of 34 flats.

(ix) As per the contention of the Respondent No.3-Society, the Society is in possession of said entire portion of 2,375.46 sq. mtrs.

(x) The Petitioner and the Respondent No.4 filed Regular Civil Suit

No.763 of 2013 in the Court of Civil Judge Senior Division at Thane inter alia contending as follows in paragraph Nos.4, 5, and 6:

(xii) It is an admitted position that no ad interim/interim reliefs have been granted in favour of the Plaintiffs in the said Suit i.e. in favour of the Petitioner and Respondent No.4, and the said Suit is still pending.

9. In the light of the above factual aspects, it is necessary to consider the relevant provisions of law. The applicable provisions in this case are Sections 10 and 11 of the MOFA and Rules 8 and 9 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 (“MOFA Rules”).

(i) Sections 10 and 11 of the MOFA are reproduced herein below. “10. Promoter to take steps for formation of co-operative society or company (1) As soon as a minimum number of persons required to form a Co-operative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organisation of persons who take the flats as a Co-operative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a Co-operative society or as the case may be, of a company. Nothing in this section shall affect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act: Provided that, if the promoter fail within the prescribed period to submit an application to the Registrar for registration of society in the manner provided in the Maharashtra Co-operative Societies Act, 1960, the Competent Authority may, upon receiving an application from the persons who have taken flats from the said promoter, direct the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar concerned, to register the society: Provided further that, no such direction to register any society under the preceding proviso shall be given to the District Deputy Registrar, Deputy Registrar or, as the case may be, Assistant Registrar, by the Competent Authority without first verifying authenticity of the applicants’ request and giving the concerned promoter a reasonable opportunity of being heard. (2) If any property consisting of building is constructed or to be constructed and the promoter submits such property to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing and registering a Declaration as provided by that Act then the promoter shall inform the Registrar as defined in the Maharashtra Cooperative Societies Act, 1960, accordingly; and in such cases, it shall not be lawful to form any co-operative society or company.

11. Promoter to convey title, etc., and execute documents, according to agreement (1) A promoter shall take all necessary steps to complete his title and convey to the organization of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat takers or apartment owners his right, title and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power. (2) It shall be the duty of the promoter to file with the Competent Authority, within the prescribed period, a copy of the conveyance executed by him under sub-section (1). (3) If the promoter fails to execute the conveyance in favour of the co-operative society formed under Section 10 or, as the case may be, the company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such co-operative society or, as the case may be, the company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or the company or the association, who have purchased the fiats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered. (4) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months, after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue a certificate to the Sub-Registrar or any other appropriate Registration Officer under the Registration Act, 1908, certifying that it is a fit case for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the land and building in favor of the applicant, as deemed conveyance. (5) On submission by such society or as the case may be, the company or the association of apartment owners, to the Sub-Registrar or the concerned appropriate Registration Officer appointed under the Registration Act, 1908, the certificate issued by the Competent Authority along with the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate Registration Officer shall, notwithstanding anything contained in the Registration Act, 1908, issue summons to the promoter to show cause why such unilateral instrument should not be registered as ‘deemed conveyance’ and after giving the promoter and the applicants a reasonable opportunity of being heard, may, on being satisfied that it was a fit case for unilateral conveyance, register that instrument as ‘deemed conveyance’. ”

(ii) Rules 8 and 9 of the MOFA Rules are reproduced hereinbelow:- “8. Period for submission of application for registration of cooperative society or company of Flat purchasers Where a co-operative society or a company of persons taking the flats is to be constituted, the promoter shall submit an application to the Registrar for registration of the cooperative society or the company as the case may be, within four months from the date on which the minimum number of persons required to form such organisation have taken flats. Where the apartment takers propose to submit the apartments to the provisions of the Maharashtra Apartment Ownership Act, 1970, by executing Declarations and Deeds of Apartments as required by that Act, the promoter shall inform the Registrar as defined in the Maharashtra Co-operative Societies Act, 1960, as soon as possible after the date on which all the apartment owners (being not less than five) have executed such Declaration and Deeds of Apartment.

9. Period for conveyance of title of promoter to organisation of flat purchasers If no period for conveying the title of the promoter to the organisation of the flat purchasers is agreed upon, the promoter shall (subject to his right to dispose of the remaining flats, if any) execute the conveyance within four months from the date on which the Co-operative society or the company is registered or, as the case may be, the association of the flat takers is duly constituted. When a promoter has submitted his property to the provisions of the Maharashtra Apartment Ownership Act, 1970 by executing and registering a Declaration as required by section 2 of the Act, and no period for conveying the title of the promoter in respect of an apartment to each apartmenttaker is agreed upon, the promoter shall execute the conveyance or deed of apartment in favour of each apartment-taker within four months from the date the apartment-taker has entered into possession of his apartment. The promoter shall file with the Competent Authority a copy of the conveyance executed by him under sub-section (1) of section 11 within a period of two months from the date of its execution. ” Thus, as per Section 11 of the MOFA, it is the responsibility of the Promoter to take all necessary steps to complete his title and convey to the organisation of persons who take flats, which is registered either as a Co-operative Society or as a company, his right, title and interest in the land and building and execute all relevant documents therefor in accordance with the Agreement executed under Section 4 of the MOFA. It is further provided that if no period for the execution of the conveyance is agreed upon, the Promoter shall execute the conveyance within the prescribed period and also deliver all the documents of title relating to the property that may be in his possession or power. Sub Section 3 of Section 11 of MOFA provides that if the Promoter fails to execute the Conveyance in favour of the Co-operative Society formed under Section 10 of MOFA within the prescribed period, the members of such Co-operative Society are entitled to make an Application in writing to the concerned Competent Authority for issuing a Certificate that such Society is entitled to have a unilateral Deemed Conveyance executed in their favour and to have it registered. Rule 8 of MOFA Rules provides that the Promoter shall submit an Application to the Registrar for registration of the Co-operative Society or the company as the case may be, within 4 months from the date on which the minimum number of persons required to form such organisation have taken flats. Rule 9 of MOFA Rules provides that if no period for conveying the title of the Promoter to the organisation of the flat purchasers is agreed upon, the Promoter shall (subject to his right to dispose of the remaining flats, if any) execute the conveyance within 4 months from the date on which the Co-operative Society or the company is registered or, as the case may be, the association of the flat takers is duly constituted.

10. In the present case, the Mira Bhaindar Municipal Council gave construction permission on 10th August 1987 and Occupation Certificate was issued on 18th February 1993. The Respondent No.3- Society was registered on or about 13th February 1998. Thus, the Petitioner and the Respondent No.4 who claim to be the “Promoters” are duty bound to form the Society within 4 months from the year 1990 when the flat purchasers agreed to purchase the flats or atleast within 4 months from 18th February 1993. They are also duty bound to execute the Conveyance Deed in favour of the Society within four months from June 1993 or 4 months from 13th February 1998 or in any case within a period of two years from 13th February 1998 as per the Clause No.12A (Page No.223 of the Writ Petition Compilation) of the Agreement executed with the flat purchasers.

11. Mr. Saraogi along with Mr. Dubey, learned Counsel have extensively relied on ACME Enterprises (supra) wherein a learned Single Judge, after considering the earlier decisions and the scheme of MOFA, has held that the authority to grant Deemed Conveyance is conditioned and controlled by the primary obligation of the Promoter to convey to the organisation of flat purchasers, the right, title, and interest in the land and buildings, in accordance with the Agreement executed under Section 4, the Competent Authority cannot convey more than what the Promoter had agreed to convey under the Agreement executed under Section 4. What Competent Authority is thus required to consider is the extent of the obligation incurred by the Promoter, whether the obligation to execute the Conveyance became enforceable and whether the Promoter committed default in, or otherwise disabled himself from, executing the Conveyance. The learned Single Judge has held that thus the inquiry is of a very limited nature. The Competent Authority cannot delve into the aspects of title. Nor the finding of the Competent Authority precludes a party from agitating the grievance as to the entitlement of the organisation of purchasers to have the Conveyance before the Civil Court. The remit of inquiry by the Competent Authority is, thus, whether the conditions stipulated for enforcement of the obligation to execute the Conveyance have been satisfied and, if yes, order an unilateral Deemed Conveyance.

12. In view of above legal position, it is necessary to consider the factual position in this Writ Petition which is already set out extensively herein above. Thus, in the present case, admittedly, the Petitioner, who under the Development Agreement dated 1st June 1978 and further Agreements were entitled to develop a huge property admeasuring 1,98,360 sq. mtrs., appointed Respondent No.4 under a Sub- Development Agreement dated 18th January 1990 as a Sub-Developer to develop a very small portion admeasuring 2,375.46 sq. mtrs. of the subject property i.e. only about 1.20% of the total plot area. Admittedly, the Petitioner and Respondent No.4 are the Promoters as contemplated under Section 2(c) of the MOFA. Section 2(c) defines a Promoter as a person or a body or association of persons, whether registered or not, who constructs or causes to be constructed a block or building of flats for the purpose of selling some or all of them to other persons as a Promoter. Therefore, in the present case, although, the building of the Respondent No.3-Society has been constructed by Respondent No.4 under the Sub-Development Agreement dated 18th January 1990, the same has been caused by the Petitioner under the Development Agreement dated 1st June 1978. Accordingly, the Petitioner as well as Respondent No.4 are the Promoters as contemplated under Section 2(c) of the MOFA.

13. At this stage, it is significant to note that Respondent No.4, who is also a Promoter and in fact in this case it is the Respondent No.4 who has constructed the said building of the Society and entered into Agreement with the individual flat purchasers and has rights with respect to the subject property, has not challenged the order granting Deemed Conveyance and as the Respondent in the present Petition has supported the case of the Petitioner. It is also significant to note that said R.C.S. No.763 of 2013 has been filed by the Petitioner and Respondent No.4 jointly as Plaintiffs and no ad interim/interim order has been passed in the said Suit till date.

14. It is also significant to note that the Petitioner has got rights under the Development Agreement dated 1st June 1978 to develop Survey Nos.159, 160, 161, 162, 163, and 164, situated at Bhayander of total area admeasuring 1,98,360 sq. mtrs. i.e. the larger property and the Respondent No.4 has been granted sub-development rights under the Agreement dated 18th January 1990 to develop a portion of the land and property admeasuring only 2,375.46 sq. mtrs. i.e. about 1.20% of the larger property.

15. In view of the law laid down in ACME Enterprises (supra), it is necessary to see the averments in the Agreement for Sale executed between the flat purchasers and Respondent No.4, i.e. M/s Sheth Land Development Corporation. The relevant portion of the said Agreement reads as follows: “AND WHEREAS dispute and difference arose between the said First Owner, Second Owner & Third Owner & the said Bhayander Estate Pvt. Ltd., on the one hand and the Janta Housing Pvt. Ltd., through Shri. Laxmichand Shivji Ratani on the other hand, which resulted into Bombay High-Court Suit No.1210 of 1986 filed by the said First, Second and Third Owner & the Bhayander Estate Pvt. Ltd. For specific performance of the agreement for development cum-sale, dated 1st June, 1978 in respect of the said properties and for other reliefs.

AND WHEREAS the consent terms were signed on 6th Sept. 1986, in the said Bombay High-Court Suit No.1210 of 1986, whereby Janta Housing Pvt. Ltd. became entitled to develop the said properties, more particularly described in the First Schedule hereunder written on the terms and condition, as set out therein.

AND WHEREAS the promoter has by an agreement for development of plot dated 18th Jan. 1990 executed between Janta Housing Pvt. Ltd., therein mentioned as the builders and the present promoters, referred as the sub-developers therein of the other part. The said Janta Housing Pvt. Ltd., has agreed with the present promoter is confer upon the present promoter the right to develop Residential Units on Sector No. “E-II-B”, situate, at Jesal Park lying & being at Village Bhayander, in Navghar Group Grampanchayat, Taluka and Dist. Thane, which is now within the Meera Bhayander Municipal Council area, as more particularly described in the Second Schedule, hereunder written.” … “AND WHEREAS the Purchaser demanded from the Promoter and the Promoter has given inspection to the Flat Purchaser of all the documents of title relating to the said land, the said order, the Development Agreement and the Plans, designs and specifications prepared by the Promoter’s Architects Shri. G. K. Vanwari & R.C.C. Consultant Shri. D. S. Joshi and of such other documents as are specified under the Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale Management and Transfer Act, 1963 (hereinafter referred to as “the said Act”) and the rules made thereunder.

AND WHEREAS the promoter has got the Flats approved from the concerned local authority, for the plans, and the specifications, elevations, sections and details of the said building/s. AND WHEREAS while sanctioning the said plans, concerned local authority and/or Government has laid down certain terms, conditions, stipulations and restrictions, which are to be observed and performed by the promoter, while developing the said land and the said building/s and upon due observance and performance of which only the completion and occupation certificate in respect of the said building/s shall be granted, by the concerned local authority.

AND WHEREAS the promoter has accordingly, commenced construction of the said building/s, in accordance with the said plans and whereas the promoter is desirous of selling or disposing of the Flats and other permissions on what is known as “Ownership basis”.” … “AND WHEREAS under section-4, of the said act, the promoter is required to execute a written agreement for sale of said Flat to the Flat purchaser, being in fact these presents and also to Register said agreement under the Registration Act, by the purchaser within specified time.

NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY

AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:

1. The Promoter shall construct the said one building namely ‘DIVINE BLESSINGS’ consisting of stilt and seven upper floors & car parkings and garages on the said land in accordance with the plans, designs, specifications approved by the concerned local authority and which have been seen and approved by the Flat purchaser with only such variations and modification as the Promoter may consider necessary or as may be required by the concerned local authority/the Government to be made in them or any of them.” “11A. The purchaser along with other Purchaser of Flats in the buildings shall join in forming and registering the Society or a Limited company to be known by such name as and for this as “DIVINE BLESSINGS” Co-operative Housing Society Limited, and/or any other name which may be approved by the promoter and the concerned authority for this purpose also from time to time sign and execute the application for registration and/or membership and other papers and documents necessary for the formation and the registration of the Society or Limited Company for becoming a member, including the bye-laws of the proposed Society and duly filled in, sign and to the Promoter within seven days of the same being forwarded by the Promoter to the Flat purchaser so as to enable Promoter to register the organisation of the Flat purchaser under section 10 of the said Act within the time limit prescribed by rule B of the Maharashtra Ownership Flats, (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964. No objection shall be taken by the Flat purchaser if any changes or modification are made in the draft bye-laws or the Memorandum and/or Articles of Association, as may be required by the Registrar of Co-operative Societies or the Registrar of companies, as the case may be, or any other competent Authority. The purchaser alongwith other purchasers of Flats in building or buildings to be constructed upon the plot of land being sector “E-II-B” (more particularly described in the second schedule hereunder written) shall form a Co-operative Society or Limited Company as hereinabove metioned. The said Co-operative Society or Limited Company shall be required to be the members of the Federation of Societies or Corporate bodies comprising of all the Societies or Corporate bodies on the said property (more particularly described in the First Schedule hereunder written) and abide by the rules and regulations, thereof.

12. A Unless it is otherwise agreed to by and between the parties hereto the promoter shall, within two years of registration of the society or Limited Company, as aforesaid cause to be transferred to the Society or Limited Company all the right, title and the interest of the Vendor/Original Owner/Promoter and/or the owners in the aliquot part of the said land together with the building/s by obtaining/or executing the necessary conveyance of the said land (or to the extent as may be permitted by the authorities) and the said building in favour of such Society or Limited Company as the case may be such conveyance shall be in keeping with the terms and provisions of this Agreement.

20. It is specifically agreed that the Promoters of the said entire Plot described in the Second Schedule hereunder written shall be entitled at their option to form the single Cooperative Society of all the premises to be constructed on the said Plot and to execute and/or cause the Owners to execute the Conveyance in respect of the said Plot and the structures thereon in favour of such co-operative Society. Such Conveyance and/or Conveyances shall however be executed only after the entire Plot described in the Second Schedule hereunder written is fully developed (i.e. all the structures as may be permitted by the concerned Authorities shall have been fully constructed on the said Plot) and the Promoters shall have sold all the premises in all structures in the said Plot and received fully the consideration amounts from the Purchaser of all the premises of the said Buildings on the said Plot.

21. The purchaser hereby covenants with the Promoters to pay consideration amount liable to be paid by the Purchaser under this Agreement and to observe and perform the covenants and conditions in this Agreement and to keep the Promoters indemnified against the said payments and observance and performance of the said covenants and conditions except so far as the same ought to be observed by the Promoters. The Purchaser also agrees and undertakes to give all the facilities to the owners. The Promoters and other Developers to carry out additional construction and/or to construct additional Buildings and Structures on the said property.

22. The Purchasers agree and undertake that in the event of the Promoters deciding to form a Co-operative Society as provided in clause herein above then and in such event the Purchaser shall become a member of such Co-operative Society in the manner hereinafter appearing AND ALSO from time to time to sign and execute the application for the formation and registration of the society including the byelaws of the proposed society within ten days of the intimation by the Promoters. No objection shall be raised to the changes in the draft Bye-laws as may be required by the Registrar of Co-operative Societies and/or other Concerned Authorities. The Purchasers shall be bound from time to time to sign all the papers and documents and all other deeds as the Promoters may require him/her/them to do from time to time for the safeguarding the interest of the Promoters and the Purchaser or other premises in the said Building. Failure to comply with the provisions of this clause will render this Agreement ipso facto to come to an end. The Purchaser shall ensure that as and when the Promoters shall so require the Co-operative Society shall pass the necessary Resolution confirming the right of the Owners, the Promoters and other Developers to carry out additional construction work on the said building and structures on the said plot and also confirming the right of the Promoters to sell on ownership basis other premises in the buildings to be constructed on the said plot.

56. The Agreement shall always be subject to the provisions of the Maharashtra Ownership Flat Act of 1963 and the Rules thereunder and to any other provisions of law applicable thereto.” Thus, it is clear that it is the responsibility of the Respondent No.4 to execute the Conveyance and as per Clause No.12A the same is to be done within a period of 2 years from the date of registration of the Society. Thus, it is clear that the Respondent No.4 has failed to perform the said statutory duty atleast for a period of 24 years. It is also significant to note that the Respondent No.4 has not challenged the order granting Deemed Conveyance.

16. The Architect Certificate dated 28th February 2022 submitted before the District Deputy Registrar, Co-operative Societies, Thane by the Respondent No.3-Society is for the area of 2,304 sq. mtrs. area whereas the Respondent No.4 has been granted rights to develop the said smaller portion of 2,375.46 sq. mtrs. by the Petitioner. According to the said Architect Certificate dated 28th February 2022, the Deemed Conveyance has been granted. An image of the said Certificate is provided here under:

17. Learned Counsel for the Petitioner and Respondent No.4 relied upon the Architect Certificate dated 8th September 2012 filed in an earlier Deemed Conveyance Application. An image of the said Architect Certificate is reproduced here under: In view of the above Architect Certificates relied upon by the Petitioner and Respondent No.4 on one hand and the Respondent No.3 on the other hand, respectively, it is significant to note that the Sub- Development Agreement dated 18th January 1990 granted by the Petitioner in favour of Respondent No.4 is to develop a portion admeasuring 2,375.46 sq. mtrs. The Petitioner has also relied on the Architect Certificate dated 1st March 2023, which is as under: Thus, in the above Certificate, only the plinth area of the building is mentioned as 339.51 sq. mtrs. However, various terms and conditions of the flat purchasers Agreement also makes reference to the parking area and other areas and therefore the above Certificate cannot be relied on and is rightly not relied on by the Respondent No.2-Competent Authority.

18. The terms and conditions of the said Sub-Development Agreement dated 18th January 1990 executed by the Petitioner in favour of the Respondent No.4 are also very important. In the said Agreement the Petitioner is described as the “Builders” and the Respondent No.4 is described as the “Sub-Developers”. The said terms are set out herein below: “AND WHEREAS the Builders are desirous of appointing the sub-Developers in respect of the area in residential Section No.E-II-B admeasuring 2375.46 Square Meters i.e. 25560 sq. ft. together with the benefit of 27186 Square feet of the F.S.I. area for development comprising of residential purposes as shown on the plan annexed hereto and delineated thereof in Blue Colour wash and more particularly described in the Second Schedule hereunder written (hereinafter referred to as “the said Area”) for the consideration and on the terms and conditions hereinafter appearing. The Builders hereby agree to allow and permit the Sub-Developers and or their nominee to develop a portion of the said Property being Sub-Section E-II-B admeasuring 2375.46 Sq. Metres or thereabouts and more particularly described in the Second Schedule hereunder written (hereinafter referred to as “the said Area”) together with the rights and benefits of utilising and/or consuming thereof F.S.I. of 27186 Square Feet i.e. 2525.64 Square Metres (approximately) to be utilised for constructing residential premises as shown on the plan annexed hereto and delineated thereon in Blue Colour wash with the benefit of the sanctioned lay-out and Building Plans approved by the MBMC by their letter dated 14th October 1986 read with the aforesaid Orders dated 19th January 1987, 27th January 1987 and Order dated 1-12-1988 of Competent Authority, Thane, subject to the terms hereof the Sub-Developers shall have sole and exclusive right to sell the F.S.I. fully or partly, or allot and/or deal with the residential premises to be constructed by them at their own costs on the said Area subject to the conditions contained herein, to the persons of their own choice and further to receive and appropriate for their own use and benefit the consideration payable and/or receivable in respect thereof. It is agreed that all the conditions of the Layout in respect of the larger property as pertaining to the Common Layout will be complied with by the Builders including the infrastructure facilities as set out in the Third Schedule hereunder written, however any condition of the layout pertaining to items which are specifically related to portion/area under development by the Sub-Developers and which are other than those mentioned in the Third Schedule hereunder written shall be carried out by the Sub-Developers at their own costs and the Sub-Developers shall not look forward to the Builders in that behalf. It is expressly agreed that the Builders will form Federation of all the Sub-Developers and/or Building Holders building wise or wing wise or plot wise and the Sub- Developers will also become member of such Association/Federation. The builder hereby confirm that they have given a peaceful & vacant possession of the said land to the said Sub-Developers on the date of execution of this Agreement. It is agreed that the infrastructures facilities set out in the Third Schedule hereunder written will be carried out and/or executed by the Builders latest before any of proposed building or buildings of the Sub Developers to be constructed on the said portion the ready for occupation and Sub- Developers informing the Builders in that behalf together with the Certificate of the Architects certifying the same.

THE SECOND

SCHEDULE ABOVE REFERRED TO: All that piece or parcel of land or ground situate lying and being at Village Khari known as Bhayander (East), in Navghar Group Gram Panchayat, Taluka & District Thane now within Meera-Bhayander Municipal Council in Sattellite Township Housing Development known as Jesal Park in Sector E-II-B having 27186 sq. ft. F.S.I. saleable and ground area of 2375.46 Square Metres i.e. 25560 Sq. ft. or thereabout as shown on the plan annexed hereto and shown in Blue Colour wash.”

THE THIRD

SCHEDULE ABOVE REFERRED TO: LIST OF INFRA-STRUCTURE FACILITIES TO BE CARRIED OUT BY THE BUILDERS

1. Internal 40 (feet) and/or 30 feet wide Road on the portion under development by the Sub-Developers more particularly described in the Second Schedule hereunder written.

2. To make the Internal Roads in the Periphery of the Area under Development by the Sub-Developers of W.B.M. nature.

3. Street Lights and storm water drain work in the periphery of the area under development by the Sub- Developers.

4. Levelling of Internal Roads and Approach Road upto the said area under development by the Sub-Developers and to bring the same upto the Main Road Level and filling of the earth and levelling of said Plot E-II-B area upto to the road level of the layout road.

5. Either to install severage line connected with the General sewer line of Meera-Bhayander Municipal Council or to install sewerage treatment plant on the said property or near the said property as the case may be practicable. The aforesaid line will be upto the said area under development of the Sub-Developers and the Sub- Developers will be responsible to get connection taken into the said Area at their costs.

6. Subject to one connection being permitted by the Meera- Bhayander Municipal Council to install under ground sewerage water line along with overhead water tank for the said property and the supply of water therein will be subject to supply by the Authorities.”

19. Thus, a perusal of the Sub-Development Agreement dated 18th January 1990 clearly shows that the Petitioner has given absolute rights of development with respect to the ground area of 2,375.46 sq. mtrs. to the Sub-Developer i.e. Respondent No.4 including entire development potential. It is the Sub-Developer i.e. Respondent No.4, who has been allotted the rights to carry out the development and construction of the building on said area of 2,375.46 sq. mtrs. The said Sub-Development Agreement dated 18th January 1990 clearly provides that it is the responsibility of the Respondent No.4 to construct the building on said portion of 2,375.46 sq. mtrs. area, and it is the responsibility of the Petitioner to provide infrastructure facilities as set out in Third Schedule before issuance of the Occupation Certificate. The said Agreement clearly provides that the Builder i.e. the Petitioner will form a Federation of the Sub-Developer and/or buildings holder building wise or wing wise or plot wise and the Sub-Developer will also become a member of such Federation. All these Clauses indicate that what has been agreed is that the Petitioner as Developer and Respondent No.4 as Sub-Developer, the Respondent No.4 will carry out the development of said area of 2,375.46 sq. mtrs. exclusively and the Petitioner will provide infrastructural facilities before Occupation Certificate. Thus, what is contemplated is that the larger property comprising of an area admeasuring 1,98,360 sq. mtrs. except for this small portion of 2,375.46 sq. mtrs. area i.e. entire larger property excluding an area of about 1.20% to be developed by the Petitioner and as far as the said area of 2,375.46 sq. mtrs. (i.e. about 1.20% of larger area) is concerned, exclusive rights are given to the Respondent No.4 to develop the same.

20. It is further significant to note that the Respondent No.4 has not challenged the said order granting Deemed Conveyance. It is also required to be noted that as far as the purchasers are concerned, the Respondent No.4 is their primary Developer, as the Agreements are executed by Respondent No.4 with the flat purchasers and the development is made on said portion of 2,375.46 sq. mtrs. in terms of the Sub-Development Agreement dated 18th January 1990 and in terms of the Agreements executed by Respondent No.4 in favour of the flat purchasers. It is also required to be noted that the Petitioner and/or Respondent No.4 has failed to perform the statutory duty under the MOFA of executing Conveyance for last about 24 years. It is also required to be noted that the order granting Deemed Conveyance dated 14th July 2022 is not challenged by the Respondent No.4.

21. In view of the above factual position, it is necessary to consider the submissions of learned Counsel for the Petitioner that the Petitioner was not made a party to the Application filed for obtaining unilateral Deemed Conveyance and therefore the impugned Order is ex parte and the same has been passed without giving the Petitioner an opportunity to put forth his case.

22. At this stage only submission of Mr. Saraogi is required to be noted that the new committee of the Respondent No.3 has filed the Application for Deemed Conveyance and they were not aware of the pending of said R.C.S. No.763 of 2013 and the address of the Respondent No.4 has been mentioned as available in the record of the Society.

23. It is the submission of learned Counsel for the Petitioner that the rule of audi alteram partem i.e. the right to be heard, is a fundamental right of a party, which has admittedly not been been adhered to in the present case. To substantiate the same, Mr. Daver, learned Counsel has relied on the decision in The King v. Sussex Justices 13 and on the 13 [1924] 1 K.B. 256 decision of a learned Single Judge dated 10th April 2023 in A.H. Wadia Trust (supra). As far as the contention that no one other than the Promoter is to be joined as a party or heard in an Application for Deemed Conveyance is concerned, it is held that the same is entirely untenable. It is further observed that reliance is also placed on Tushar Jivram Chauhan (supra) which contemplates that the Competent Authority is required to give a fair and equal opportunity of hearing to all concerned, including Owner, Promoter, Builder, and the Purchaser of the property in question and that the Promoter is not the only counterparty to an Application for Deemed Conveyance. The reliance is placed on Tushar Jivram Chauhan (supra) and more particularly on paragraphs 19 and 20 thereof. In the said decision, it has been held that the scheme of MOFA itself contemplates that the Competent Authority to take decision of granting Deemed Conveyance only after satisfying about the documents and by following the procedure so prescribed, including giving fair and equal opportunity to all concerned including, Owner, Promoter, Builder and the Purchaser of the property. It has been further held that the Competent Authority is required to examine all aspects before passing the order of Deemed Conveyance. It has been further held that the principles of natural justice are required to be followed strictly. It is further held that the summary power and/or jurisdiction does not mean and/or include that the Competent Authority can proceed summarily by overlooking the basic principles of natural justice, merely because there was delay and/or intentional delay and/or because the Promoter and/or Developer failed to grant Conveyance in favour of the Society and/or its members.

24. A reliance is also placed on Kashish Park Reality Pvt. Ltd. (supra). In the said decision, the issue was whether the Competent Authority once having passed the order under Section 11 of the MOFA, has jurisdiction to review the order and whether order can be reviewed without providing an opportunity of hearing, which is one of the fundamental principles of natural justice. Reliance is also placed on the decision of the Supreme Court in O. P. Gupta v. Union of India 14 where the Court has reiterated that no decision be taken which will affect the rights of any person without first giving him or her an opportunity of putting forward their case. Reliance is also placed on the decision in Vijay Builders & Developers (supra) and more particularly on paragraphs 13 and 15 thereof where it has been held that the Competent Authority has to abide by the principles of natural justice, hear the parties, and give them sufficient opportunities as required under the MOFA and then pass appropriate orders in the facts and circumstances of the case. Reliance is also placed on Bharat Sewak Samaj (supra), wherein the Supreme Court has explained various aspects of principles of natural justice. It is submitted that the Writ

Petition is maintainable as there is a violation of the principles of natural justice and reliance is placed on the decision of the Supreme Court in Whirlpool Corpn. (supra).

25. The Supreme Court in its decision in State of U.P. v. Sudhir Kumar has examined the law on the aspect of natural justice and the scope and applicability of the same. After considering the various decisions of the Supreme Court on this issue, in paragraph 39, the Supreme Court has set out certain principles with respect to the principles of natural justice and the scope and applicability of the same. The said principles read as under:

(i) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(ii) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the Orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(iii) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute 15 (2021) 19 SCC 706: 2020 SCC OnLine 847 the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

(iv) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, in Court does not pass futile Orders of setting aside or remand when there is, in fact, no prejudice caused.

26. In this particular case, the admitted factual position clearly shows that building construction permission was granted by Mira Bhaindar Municipal Council on 10th August 1987. The flat purchasers purchased the respective flats in or about the year 1990. The Occupation Certificate was granted on 18th February 1993. It is an admitted position that since the year 1993 the flat purchasers are occupying the said building of the Society and for about 30 years have passed since when the building has been occupied and the Promoters have failed to perform their statutory duty of the execution of Conveyance Deed.

27. As already set out herein above, as per the provisions of law, it is the duty of the Promoter to register the Society and after registration of the same, to convey the land and building in favour of the Society within the time of 4 months or as agreed in the Agreement. It is an admitted position that the Society was registered on 13th February 1998 belatedly after a period of about 8 years. As per the Agreement, the Conveyance is to be executed within a period of 2 years from the date of registration of the Society. In fact, the Petitioner/Respondent No.4 delayed registration of the Society almost for 8 years. The factual position on record clearly shows that the Petitioner and the Respondent No.4 have failed to perform their statutory duty of execution of Conveyance after registration of Society for almost 30 years or atleast for 22 years.

28. It is significant to note that Respondent No.4 has constructed the said building. The Respondent No.4 was made a party to the said proceedings. It is their contention that they were served on their old address. It is further significant to note that the Respondent No.4 has not challenged the Order dated 14th July 2022 granting Deemed Conveyance.

29. Apart from the above aspects, it is settled law that the order granting Deemed Conveyance does not conclude the issue of title. Therefore, there cannot be any prejudice which can be caused to the Petitioner as a Civil Suit can be filed for establishing their title. In fact, in this case the Petitioner and Respondent No.4 jointly have already filed a Civil Suit in the year 2013 and till date no ad interim/interim orders are passed in favour of the Petitioner/Respondent No.4. The reliance on Order dated 4th August 2023 passed by learned Single Judge in Writ Petition No.9597 of 2023 is totally misconceived. As rightly pointed out by learned Counsel for the Respondent No.3-Society, nothing is decided by that order. In any case, the law laid down by the Supreme Court in Sudhir Kumar Singh (supra) has not been considered by the learned Single Judge. Therefore, there is no substance in the contention that the impugned Order is liable to be quashed and set aside as the same has been passed without following the principles of natural justice.

30. The second contention which is required to be considered is whether the area granted by the impugned Order in favour of the Respondent No.3-Society is greater than what they are entitled to. A perusal of the Sub-Development Agreement dated 18th January 1990 executed by the Petitioner in favour of the Respondent No.4 clearly shows that rights are granted to the Respondent No.4 to develop a portion of the larger property admeasuring 2,375.46 sq. mtrs. The Certificate under Section 11(3) has been granted only with respect to an area 2,304 sq. mtrs. The same has been granted on the basis of the Architect’s Certificate which is at page no.361. Therefore, there is no substance in the contention that by the impugned Order, greater area has been granted in favour of the Respondent No.3 than what they are entitled to. In any case, as per the settled law, the order granting Deemed Conveyance does not conclude the issue of title.

31. It is required to note the reasons given by the Competent Authority while passing the order granting Deemed Conveyance: ßvtZnkj rlsp izfroknh;kauh lknj dsysyh dkxni=s] ys[kh rlsp rksaMh Lo:ikr ekaMysys Eg.k.ks fopkjkr ?ksÅu [kkyhyizek.ks fu”d”kZ dk<.;kr;sr vkgsr- 1½ egkjk”Vª ekydh gDdkP;k lnfudkackcr ¼R;k cka/k.;kl izksRlkgu ns.ks] R;kaph fodzh] O;oLFkkiu o gLrkarj.k;kps fu;eu dj.;kckcr½ vf/kfu;e 1963 ps dye 10¼v½ P;k rjrqnhizek.ks fMOgkbZu CysflaXl dks- vkWi- gkS- lksfy-] iRrk & lsDVj E/II/B] tsly ikdZ] HkkbZanj ¼iwoZ½] ftYgk Bk.ks 401105 gh laLFkk egkjk”Vª lgdkjh laLFkk vf/kfu;e 1960 ps dye 9¼1½ vUo;s fn- 13@02@1998 jksth ukasn.kh >kysyh lgdkjh laLFkk vkgs- 2½ egkjk”Vª ekydh gDdkP;k lnfudkackcr ¼R;k cka/k.;kl izksRlkgu ns.ks] R;kaph fodzh] O;oLFkkiu o gLrkarj.k;kps fu;eu dj.;kckcr½ fu;e 1964 ps fu;e dz- 9 izek.ks fodkld;kauh T;k rkj[ksl lgdkjh laLFksph;FkksfprfjR;k uksan.kh dsysyh vkgs] R;k rkj[ksiklwu 4 efgU;kaps vkr izorZd@fodkld;kauh laLFksP;k ukos tfeuhrhy o bekjrhrhy ekydh gDd o laca/k] brj gDd;kaps gLrkarj.k d:u ns.ks vko’;d vlrkauk rs dj.;ke/;s dlwj dsyh vkgs- 3½ fodkldkus fu;e 9 izek.ks Lor%ps drZO; ikj ikM.;kl dlqj dsY;kus] dye 11¼3½ izek.ks vtZnkj laLFksyk R;kaps ukos dsysys,di{kh; ekuho vHkhgLrkarj.ki= o rs uksan.khd`r vlY;kpk gDd o v’kk vk’k;kps izek.ki= feG.;klkBh l{ke izkf/kdkÚ;kdMs ys[kh vtZ dj.;kph rjrwn vkgs- R;kizek.ks R;kauh vtZ dsysyk vkgs- 4½ egkjk”Vª ekydh gDdkP;k lnfudkackcr ¼R;k cka/k.;kl izksRlkgu ns.ks] R;kaph fodzh] O;oLFkkiu o gLrkarj.k;kps fu;eu dj.;kckcr½ vf/kfu;e 1963 ps dye 11 o fu;e 1964 e/khy fu;e uÅ vUo;s rlsp egkjk”Vª ‘kklu lgdkj] i.ku o oL=ks|ksx foHkkx;kapk ‘kklu fu.kZ; dzekad % lx`;ks&2017@iz-dz- 192@14&l fnukad 22 twu 2018 vUo;s vko’;d miyC/k dkxni=kaph iwrZrk vtZnkj laLFksus dsY;kps fnlwu;srs- 5½ ekSts [kkjh] rk- o ft- Bk.ks;sFkhy lOgsZ ua- 23 o l- ua- 24 e/khy uewn tkxsoj bekjr cka/kysyh vkgs o R;k bekjrhP;k lgdkjh LakLFksl okLrqfo’kkjn es- LVqfMvks vkdZ] lfpu ts banoVdj;kauh nk[kY;kr uewn dsysizek.ks 2304 pkS-eh- brds {ks=QG (Proportionate Area) ns; vkgsrlsp eatqj js[kkadu e/khy tkxse/;s laLFksP;k bekjrhP;k cka/kdke {ks=kP;k izek.kkr vfoHkkT; fgLlk jkghy- 6½ uequk 7 izek.ks o okLrqfo’kkjn izek.ki=ke/;s ueqn dsY;kizek.ks laLFksP;k bekjrhe/;s 34 lnfudk vkgsr o bekjrhPkh lgdkjh laLFkk lu 1998 e/;s ukssanoyh vkgs- rFkkih vkti;Zar ekyeRrk gLrkarj.kkckcr tfeuekyd@fodkld;kauh laLFksP;k ukos tehu gLrkarj.kkph dk;Zokgh dsY;kps fnlwu;sr ukgh- R;keqGs laLFkk ekydh gDdkiklwu vusd o”kZ oafpr vkgs- Eg.kwu vktfefrl laLFkk uksan.khps mÌs’k lQy gks.ksP;k n`”Vhus feGdrhps laLFksP;k ukos vfHkgLrkarj.k gks.ks xjtsps vkgs- izR;{k ekst.khr dehtkLr {ks= vlY;kl R;kizek.ks cny d:u ?ks.ks vko’;d jkghy- rlsp vfHkgLrkarjhr gks.kkÚ;k tkxsr Hkfo”;kr l{ke U;k;ky;@l{ke izkf/kdkjh;kaps vkns’kkizek.ks vU; dks.kkpsgh dk;ns’khj gDd ‘kkchr >kY;kl] lnjps vkns’k vtZnkj laLFksoj ca/kudkjd jkgrhy- 7- laLFksus ekÖ;kleksj lknj dsysyh dkxni=s] ys[kh] rksaMh fuosnus;kvk/kkjs lnjpk vkns’k ns.;kr;sr vkgs- laca/khr tehu o bekjrhlaca/kkr dks.krhgh vfu;ferrk vlY;kl] ‘kklu] egkuxjikfydk fdaok brj laLFkkaph ns.kh vlY;kl] R;kl loZLoh vtZnkj laLFkk tckcnkj vlrhy o R;kckcr U;k;ky;kyk o laca/khr izkf/kdkÚ;kauk laLFksfo:/n fu;ekuqlkj vko’;d o;ksX; rh dkjokbZ djrk;sbZy- lnjpk vkns’k gk laLFkk LFkkiusuarj eksQk vf/kfu;e 1963 uqlkj laLFksP;k ukos tehu o bekjrhps vfHkgLrkarj.k gks.ksP;k gDdkps ckch’kh laca/khr vkgsmijksDr fu”d”kkZl vf/ku jkgwu nq¸;e fuca/kdkl fdaok uksan.kh vf/kfu;e 1908 ¼1908 pk 16½ [kkyhy dks.kR;kgh brj leqfpr uksan.kh vf/kdkÚ;kl tehu o bekjr;krhy izorZdkaps gDd] ekydhgDd] fgrlaca/k;kaps vtZnkjkps ukos ekuho vfHkgLrkarj.k Eg.kqu vfHkgLrkarj.k dj.kkÚ;k vfHkgLrkarj.k foys[kkps fu”iknu dj.;klkBh gs izdj.k;ksX; vkgs v’kh ek>h [kk=h >kY;keqGs eh [kkyhyizek.ks vkns’k nsr vkgs-Þ English translation of the above as supplied by the Petitioner is as follows: “On perusing the documents, written and oral submissions by Applicant and non-applicant folloiwng coclusion has been made:-

1) Pursuant to the provision of Section 10(a) of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963, the Applicant Society Divine Blessings Co-op. Housing Society Ltd., Section – E/II/B, Jesal Park, Bhayander (East), Tal. Dist. Thane has been registered u/s 9(1) of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 on the date 13/02/1998.

2) Rule 9 of Maharashtra Ownership of Flats Rules, 1964, provides that the promoters should get the title of the Land and building ‘clear’ and if any specific period of such Conveyance is not mentioned in the Agreement, then should make such Conveyance of the land and building to the lawful society of the flat-purchasers within 4 months from the date on which such lawful society of the flat-purchasers comes in to existence. However, he has not done the same.

3) As the Developer has not act pursuant to the provisions of Rule 9, there is provision in Section 11(3) of the Act that the Society shall make an application for deemed conveyance being the principle of natural justice with the Competent Authority and accordingly the Society has made an application.

4) Pursuant to the provisions of Section 11 of the MOFA Act, 1963 and Rule-9 of Rules 1964 and Government of Maharashtra Co-operative, Marketing and Textiles Department Government Resolution No. MOF 2017/CR192/14-Co dated 22nd June, 2018 dated 25/02/2011 the society has complied all the documents required.

5) The building is constructed on the land bearing Survey No. 23 and Survey No. 24 of Village-Khari, Tal. Dist. Thane and as mentioned in the certificate issued by the Architect Studio Arc of Shri Sachin J. Indavatkar of the Co-operative Society of the said building, the area is 2304.00 sq. m. (proportionate area) and in the land shown in the sanctioned layout, the construction area of the building of the society is proportionate area and is the undivided share.

6) As per Form-7 and as mentioned in the certificate of the Architect, there are 34 flats in the said building of the Society and the co-operative society of the building has been registered in the year 1998. However, till date the property has not been transferred in the name of society by the landlord/developer. Therefore, the society was deprived from its rights for many years. Therefore, to have the success of the registration of the society, it is necessary to have coneyance in the name of society. During the actual demarcation if the area is less-more than the said is required to be changed. In future for the land to be conveyed if any rights have been proved of any third party as per the order of the Competent Court/Competent Authority, then the said orders are binding upon the applicant society.

7) On the basis of the documents, written, oral submission made by the applicant society before me, this order is passed. If there is any irregularity about the concerned land and building, any dues payable to the Government. Municipal Corporation or other authorities, it is responsibility of the applicant society. And in this respect the Court and concerned Authority shall take action as per rules against the Society. This Order is related to the conveyance of land and building in the name of society as per MOFA Act, 1963 after constitution of the society. Pursuant to the above conclusion, this is a fit case for executing Conveyance Deed ex parte for making conveyance of the right, title and interest of the promoters in the said land and buildiing as “Deemed Conveyance” in favour of the Applicant (and) for the Sub-Registrar or any other Appropriate Registration Officer under the Registration Act, 1908 (XVI of 1908) (to registration the same) and that it is necessary to issue a Certificate to that effect. Therefore, I pass the Order as follows:-” Thus, the Competent Authority has taken into consideration the relevant factors including compliance of Government Resolution dated 22nd June 2018. This Court has also elaborately considered the merits, and reasons with respect to merits are set out in earlier part of this Judgment.

32. It is also required to note the submission of learned Counsel for the Respondent No.3-Society that the Society building is about 35 years old, is in a dilapidated condition, and it requires re-development and that the Petitioner has challenged the order granting Deemed Conveyance to obstruct the process of re-development. It is also required to be noted that the Petitioner has allotted right to develop the said small portion of land to the Respondent No.4 by accepting valuable consideration. The Respondent No.4 has accordingly constructed the building of the Respondent No.3-Society by accepting valuable consideration from the flat purchasers about 34-35 years ago. Inspite of this position, both of them have failed to perform their statutory duty of execution of Conveyance in favour of the Respondent No.3-Society and are now trying to take undue advantage of their failure to perform their statutory duty for more than 30 years. It is setttled law that the Writ Court exercising jurisdiction under Articles 226 and 227 exercises equitable jurisdiction and the same need not be exercised in favour of the Builders/Developers who have failed to perform their statutory duty for a period of about more than 30 years and who are now trying to take undue advantage of the resultant situation.

33. Insofar as the contention that the Government Resolution dated 22nd June 2018 has not been followed, it is required to be noted that the terms and conditions of the Sub-Development Agreement dated 18th January 1990 and Agreement executed with the flat purchasers are very clear. The Competent Authority has taken into consideration the aspect that the Respondent No.3-Society has complied with the said Government Resolution dated 22nd June 2018. Thus, there is no substance in the said contention.

34. As far as the contention that the effect of pendency of Suit No.763 of 2013 is not taken into consideration, it is an admitted position that the said Suit is pending even till date. No interim or ad interim Order is passed in the said Suit. As noted herein above, it is settled law that the order granting Deemed Conveyance does not conclude the issue of title and the remedy of filing a Suit is available to the Petitioner. Therefore, it is clear that the impugned order granting Deemed Conveyance will be subject to any Order passed in the said R.C.S. No.763 of 2013. Thus, there is no substance in the said contention.

35. Accordingly, the Writ Petition is dismissed, however, with no Order as to costs.

36. It is clarified that the observations in the impugned Order are only for the purpose of granting Deemed Conveyance and the observations in this Order are only to examine the legality and validity of the order granting Deemed Conveyance. Therefore, it is made clear that the said Regular Civil Suit No.763 of 2013 in Thane Court as well as any other Suit, if any, filed regarding title concerning the property in question, is required to be decided on the merits of the said Suits and all contentions of all parties in that behalf are expressly kept open.

37. In view of the dismissal of the Writ Petition, nothing survives in the Interim Application and the same is also dismissed.

38. Although this Judgment was dictated in open Court and the dictation was completed on 19th December 2023, the draft of the Judgment could not be finalised as I was having the bail assignment from 2nd January 2024 till 10th May 2024. During that period, I was sitting on dais everyday for about an additional 2-3 hours after regular Court working hours and I used to be in my Chamber atleast till 10.00 pm and sometimes until midnight to ensure that all bail orders were uploaded on the same day and therefore there is a delay in finalising the draft of this Judgment. [MADHAV J. JAMDAR, J.]