Royal Accord Avenue CHS Ltd. v. District Deputy Registrar, Co-operative Societies, Mumbai City & Ors.

12. OS WP-2431-2018.doc R.M. AMBERKAR (Private Secretary)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. WRIT PETITION NO. 2431 OF 2018 Royal Accord Avenue CHS Ltd.. Petitioner

VERSUS

District Deputy Registrar, Co-operative Societies, Mumbai City (4) & Ors... Respondents....................  Mrs. Anjali Helekar a/w Ms. Anu Kaladharan and Ms. Yogita Tembe for Petitioner  Mr. S.B. Gore, AGP for Respondent No. 1 / State  Mr. B.R. Zaveri for Respondent No. 2  Ms. Mudita Pawar a/w Ms. Manasi Sawant for Respondent Nos. 4 to 7................... CORAM: MILIND N. JADHAV, J. DATE: OCTOBER 6, 2023 JUDGMENT:

1. Heard Mrs. Helekar, learned Advocate for Petitioner; Mr. Gore, learned AGP for Respondent No. 1 / State; Mr. Zaveri, learned Advocate for Respondent No. 2 and Ms. Pawar, learned Advocate for Respondent Nos. 4 to 7.

2. Rule. Rule is made returnable forthwith and the matter is heard finally at the stage of admission itself by consent of the parties.

3. Present Petition filed by Petitioner – Royal Accord Avenue Co-operative Housing Society Ltd takes exception to the two specific conditions appearing in the order / certificate granting Deemed Conveyance to the Petitioner Society which are mentioned as 1 of 6 condition precedent in the operative part of the order / certificate under clause 3(1) and (2) of the said order which is at page No. 41 of the Petition.

4. Mrs. Helekar has taken me through the gamut of the proceedings before the Competent Authority / Registrar which has been duly reflected in the detailed order and certificate along with reasons which is passed under Rule 13(5)(c) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction etc.) Rules, 1964 and Certificate issued under Section 11(3) and 11(4) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Petitioner Society filed Application being Application No. 79 of 2011 seeking Deemed Conveyance.

5. The facts of the case are delineated in paragraph No. 4 of the order and certificate which are not in dispute and therefore I do not find it necessary to reproduce the same. Petitioner is only aggrieved with the two conditions which are stated as a condition precedent for the purpose of granting Deemed Conveyance and issuing the certificate to the Petitioner through the learned Registrar has concluded that he is satisfied that Petitioner’s case was a fit case for enforcing unilateral execution of Conveyance Deed conveying the right, title and interest of the promoter in lands bearing CTS NO. 2 of 6 1852/A (1146.[7] Sq. Mtrs) and 1852/B (85 Sq. Mtrs.) of Borivali Village, Taluka Borivali, Mumbai Suburban District and the building known as ‘Royal Accord’ constructed on the said plot of land in favour of the Applicant Society as deemed conveyance and to grant the unconditional leasehold rights in respect of 56.35 Sq. Mtrs. of the said land.

6. Mrs. Helekar would submit that the two onerous conditions insisted on compliance are not only dehors the powers of the Registrar to levy such conditions but have no nexus whatsoever with the Petitioner Society. She would submit that requirement for stamping the agreement for sale dated 11.06.1996 between the original owner of the land (Respondent Nos. 4 to 7 herein) and the Developer (Respondent No. 2 herein) cannot be said to be a mandatory requirement to determine the authenticity of the transfer and conveyance in the name of the Applicant Society. She would submit that Petitioner Society has 31 members who have duly purchased the flats from Respondent No.2 Developer by paying stamp duty and registered their respective agreements and in that view of the matter, such satisfaction could never have been arrived at for granting the unilateral conveyance by the Registrar. Hence, in that view of the matter, she would submit that Clause 3(1) of the operative part of the order and certificate is not only onerous but deserves to be rejected 3 of 6 and dismissed.

6.1. Next she has drawn my attention to clause No. 3(2) (Page No. 42 of the Petition) wherein it is stated that the Deemed Conveyance is subject to the Petitioner providing the order or settlement between Respondent No. 2 and Respondent Nos. 4 to 7 before executing the Conveyance Deed. In this respect, Mr. Zaveri, learned Advocate for Respondent No. 2 has drawn my attention to paragraph No. 15(bb) (page No. 36 of Petition) which refers to recording the dispute between the parties by the Authority namely the original owners of the land and the Developer wherein after placing all facts on record and observing the timeline of the Summary Suit NO. 1345 of 1999 filed in this Court between Respondent No. 2 and Respondent Nos. 4 to 8 as also various flat purchasers, the Competent Authority i.e. Registrar has himself come to a conclusion that raising the issue of termination of the agreement or bringing the fact of mutual cancellation of agreement would have no merit and has rejected the claim of the opponents before him. Mrs. Helekar would therefore submit that in view of such finding arrived at by the Competent Authority himself, calling upon the Petitioner Society to satisfy the condition mentioned in Clause 3(2) of the operative order and provide a certificate to that effect is unsustainable and therefore deserves to be rejected and dismissed. 4 of 6

7. Ms. Pawar, learned Advocate for Respondent Nos. 4 to 7 would submit that there is a default on the part of Respondent No. 2 Developer in effecting the payments under the agreement between them. I have brought to her notice the fact that the lis between the parties stood disposed of and in the last ten years, there have been no cases initiated by the land owners or the legal heirs of the original land owners and the precise view taken by the Competent Authority / certificate, granted by the Registrar. On perusal of the said paragraph, it is clearly seen that both the conditions enumerated in Clause Nos. 3(1) and (2) of the operative part of the order and certificate dated 10.07.2012 in fact stand duly answered by the Competent authority / Registrar himself as alluded to herein above and therefore there cannot be any reason to impose the same conditions upon the Petitioner Society to satisfy the Registrar / Competent Authority any further before granting the certificate. Such directions are therefore uncalled for and militate against the findings of the Registrar in his own order.

8. In view of the above observations and findings, the reference to the condition precedent imposed upon the Petitioner Society to comply with the two conditions in Clause Nos. 3(1) and 3(2) of the operative part of the order and certificate dated 10.07.2012 stand 5 of 6 deleted and cancelled.

9. Rest of the order and certificate dated 10.07.2012is retained as it is sans the two impugned conditions.

10. It is directed that after rectifying the order dated 10.07.2012 as directed unilateral Deemed Conveyance shall be granted to the Petitioner Society within a period of four weeks from today subject to the Petitioner complying with all other requisite formalities in accordance with law.