Taranjeet Singh Mohan Singh Sawhney vs District Deputy Registrar Cooperative Societies

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(SC) 549

IN THE SUPREME COURT OF INDIA
G.S. SINGHVI, RANJANA PRAKASH DESAI, JJ.
Taranjeet Singh Mohan Singh Sawhney and others - Appellants
Versus
District Deputy Registrar Cooperative Societies and others - Respondents
CIVIL APPEAL NO. 4822 OF 2013
(Arising out of SLP(C) No. 12037 of 2013)
Decided on : July 1, 2013

Headnote:
Maharashtra Ownership Flats Regulation of the Promotion of Construction, Sale, Management and Transfer Act, 1963 - Section 5A – Promotion – Construction buildings - This appeal is directed against order which Single Judge of Bombay High Court refused to stay order passed by respondent District Deputy Registrar Cooperative Societies cum Competent Authority Mumbai City cum Competent Authority appointed Section Maharashtra Ownership Flats Regulation of Promotion Construction Sale Management and Transfer for grant of certificate to respondent Royal Diamond Park Co operative Housing Society get unilateral conveyance deed executed and registered in respect of an area measuring Village Kole Kalyan, Bandra – Held, Secondly documents produced before this Court unmistakably show that notice issued to appellants to apprise them about changed date of hearing was not delivered to them - Statement made in paragraph counter affidavit filed by respondent substantially supports appellants assertion that they had not received intimation about preponement of date of hearing - It also belies assertion of respondent that notice was delivered to appellants before date of hearing notice had been duly served upon appellants then respondent would have produced receipt of delivery - His failure to do so leads to an irresistible inference that appellants were not made aware of fact that date hearing had been changed documents produced by respondent do not help us in resolving controversy regarding service of notice on appellants - Contents of these documents only adds to confusion - Second letter sent by Senior Superintendent of Post Office was delivered then court have no option but to hold that notice issued by office of respondent was delivered to addressee one day after date fixed for hearing - Corollary to above findings it must be held that order passed by respondent is vitiated due to violation of rule of Audi alter am partum and is liable to be set aside – Appeal allowed

JUDGMENT

G.S. SINGHVI, J.

1. Leave granted.

2. This appeal is directed against order dated 20.2.2013 by which the learned Single Judge of the Bombay High Court refused to stay the order passed by respondent No.1 – District Deputy Registrar Cooperative Societies-cum-Competent Authority, Mumbai City (3)–cum–Competent Authority appointed under Section 5A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 for grant of certificate to respondent No.3 – Royal Diamond Park Co-operative Housing Society Ltd. to get a unilateral conveyance deed executed and registered in respect of an area measuring 2634.36 sq. mtrs. out of CTS Nos.661 to 691 of Village Kole Kalyan, Bandra.

3. At the outset, we consider it proper to mention that when IA No.3/2013 filed by respondent No.3 was listed for hearing, learned counsel for the parties were heard on the merits of the case and the order was reserved.

4. Late Shri Mohan Singh (predecessor of the appellants) owned land measuring 4144.90 sq. mtrs. comprised in CTS Nos. 661 to 691 of Village Kole Kalyan, Taluka Andheri. On 16.10.1979, he entered into an agreement with respondent No.4 for sale of land measuring 3762.45 sq. mtrs. After execution of the agreement, respondent No.4 constructed five buildings, which were occupied by the members of three Co-operative Housing Societies, i.e., respondent Nos. 3, 5 and 6.

5. Due to non-payment of the amount in terms of agreement dated 16.10.1979, the appellants, who are the legal heirs of late Shri Mohan Singh, issued notice dated 16.3.2005 and terminated agreement dated 16.10.1979. After four years, respondent No.5 approached the appellants for purchase of 702.341 sq. mts. out of the land owned by late Shri Mohan Singh. At the asking of the appellants, respondent No.5 produced the consent of respondent Nos. 3 and 6. Thereafter, the appellants executed conveyance dated 25.8.2011 in favour of respondent No.5 and the developer – M/s. Rahul Constructions.

6. Although the appellants had terminated agreement dated 16.10.1979, respondent No.3 entered into an agreement with M/s. Raja Constructions Company (M/s. Raja Builders) for redevelopment of the buildings of ‘C’, ‘D’ and ‘E’ Wings.

7. In furtherance of the agreement entered with M/s. Raja Builders, respondent No.3 filed an application in Form VII under Section 11(3) read with Section 11(4) of the 1963 Act and Rules 11, 12 and 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 and prayed for grant of a certificate for unilateral execution of the conveyance deed.

8. Respondent No.1 entertained the application and ordered notices to the appellants and respondent Nos. 4 to 6. In his reply dated 19.3.2012, appellant No.1 raised several objections to the maintainability of the application filed by respondent No.3. In the first place, he pleaded that the relief of specific performance of the agreement can be obtained only from a Civil Court and respondent No.1 did not have the jurisdiction to entertain the application. He also pleaded that the applicant (respondent No.3 herein) does not have the locus to file the application because agreement dated 16.10.1979 executed by Shri Mohan Singh in favour of respondent No.4 had already been terminated. According to appellant No.1, he had already executed an agreement with one of the Societies and M/s. Rahul Builders and, therefore, respondent No.3 was not entitled to seek execution of unilateral conveyance in respect of 2507.62 sq. mts. land. Some of the noticees also filed their affidavits. Thereafter, respondent No.3 filed rejoinder affidavit.

9. Respondent No.1 fixed the matter for hearing on 23.1.2012, 27.2.2012, 7.3.2012, 13.3.2012, 19.3.2012, 27.3.2012, 3.4.2012 and 17.4.2012. On 7.5.2012, the case was adjourned for 15.5.2012 with a direction to the appellants to file written arguments. However, the appellants did not file written argume

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