Back
IN THE HIGH COURT OF BOMBAY
D.R. Dhanuka. J
Ramniklal Tulsidas Kotak and other.... Plaintiffs.
Versus
Varsha Builders and other.... Defendants.
Notice of Motion No. 966 of 1991 in Suit No. 1094 of 1991, decided on 30-7-91
Advocates appeared :
A.K . Choksi with Nitin. G. Thakkar instructed by Little Co., for the plaintiffs in support
P.K. Samdani instructed by Pravin Mehta Mithi Co., for defendants is Nos. 1 to 3 to show cause
Rajiv N. Narula for defendants Nos. 4 to 9 to show cause.
Bhor with B.G Nanal. Smt. A.H Chheda and H.V Tendolkar, for defendants Nos. 14 to show cause.
Sections (c), 3, 4, 9 and 11-Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1987, Role 3 Model Form V -Different categories of promoters as defined in Section 2 (c)-Promoter-Meaning of.
It emerges from the scheme of the said Act rean with the definition of the expression "Promoter" contained in Section 2 (c) of the said Act and Rule 5 of the statutory form referred to hereinabove that the promoter must fall in either of the following categories:
(1) The Promoter may be the owner of freehold land; or
(2) The Promoter may be the lessee of the land intended to be developed. provided the indenture of lease authorises the promoter to construct flats and the same on ownership basis;
(3) The promoter may have entered into an agreement to purchase the land from the lawful owner thereof. In such a case, the Vendor of the promoter must have a valid title to the said land and the agreement must not be terminable by the Vender.
(4) The Promoter is an agent of the owner or of the authorised lessee duly entitled to construct and dispose of flats on ownership basis. In such a case, the promoter/developer must make the owner of freehold or leasehold interest as Confirming Party to the agreement of sale of flat on ownership basis so as to bind the owner with all the terms, conditions and covenants of third party agreement. When the Promoter falls in 3rd or 4th category, the promoter has no title to the land in the sense in which the word "title" is normally understood in the properly law. To this limited extent the expression "promoters title" is used in the Act, 1963 in the special wider sense.
Sections 3 (2) (b) and 11- Certificate of title-Doubt about title of adverse possession and reasonable prospect of litigation In respect of title to land in question-Whether certificate of title can he issued-Liability of Advocates in case of issuing certificate of title on basis of doubtful claims.
If there is reasonable doubt about title of adverse possession and reasonable prospect of litigation in respect of title to the land in question no certificate of title can be issued at all. If the Advocates issue certificate of title on basis of doubtful claim of adverse possession, they would be committing breach of their professional duty. Advocate are expected to apply skill and professional expertise while issuing certificate of title. If the Advocates issue certificates of title indiscriminately and without due regard to their statutory duty, they must he held liable in damages to the dandified fiat purchasers.
Sections 3 (2) (b) and 11-Certificate of title-To be issued by Advocate or Attorney-Need not he unconditional or unqualified-Such a certificate can be qualified only to a limited extent i. e. to extent of existing encumbrances and charges which must be redeemed or removed before due date as contemplated by Section 3 (2) (b) rean with Section 11 of the Act.
Sections 3(2) (b) and 11-Certificate of title-To be issued by Advocate or Attorney-Ned not be unconditional or unqualified-Such a certificate can be qualified only to a limited extent i.e. to extent of existing encumbrances and charges which must be redeemed or removed before due date as contemplated by Section 3(2) read with Section 11 of the Act.
Section 3(2) (b) and 11- Clear certificate of title in terms prescribed can be issued by Advocate- In case of non-issuing of clear certificate of title, it must disclose certain facts.
If a clean and clear certificate of title in the terms prescribed can be issued by the Advocate, so much the better. It cannot be issued because of the land being subject to any pre-existing encumbrances, the certificate of title can be adapted to a limited extent as explained hereinafter. In such a case the certificate of title must disclose at least the following.
(1) Nature of the title of the promoter;
(2) Nature of the title of the vendor or the promoter or of the person through whom the promoter claims;
(3) Encumbrances and claims on the land;
(4) Steps, required to be taken by the promoter for completing title as absolute clear and marketable while conveying the property or causing the same to be conveyed to the organisation of flat purchasers on due date ;
(5) Whether the title of the promoter or his vendor or the person through whom the vendor claims is of doubtful nature in any manner? If so, the nature of doubt entertained;
(6) Whether the agreement to sell the flat will bind the owner of the land?
(7) Whether the authorisation granted in favour of the promoter by the owner, lessee or the vendor is irrevocable so as to bind the owner with the agreements for sale of the flats? Whether an agreement to purchase the land by the promoter is revocable or irrevocable?
Sections 3 (2) (b) and 11-Usual norms to be followed in issuing certificate of title by Advocates.
Advocates and Solicitors, by their very training and background should be circumspect in their action and conduct and should follow the usual norms viz :-
(a) Peruse the title-deeds;
(b) Have searches taken in the office of the Sub-Registrar (and also of the Registrar of Companies in case the Vendor is a Limited Company)
(c) Issue public Notices in at least two newspapers (one in vernacular and the other in English circulating in the area where the property is situated) inviting claims of any member of the public against or in respect of the property in question;
(d) Ask the Purchaser to require his Architect to ascertain whether the land is under set-back of reservation;
(e) Administer Requisitions on title and be satisfied about the answers;
(f) Obtain Declaration on Oath from the relevant persons regarding the factual position before issuing a Certificate of Title.
PROMOTION OF CONSTRUCTION, SALE, MANAGEMENT AND TRANSFER RULES, 1987.
Rule 3-See Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Sections 2(c), 3, 4, 9 and 11.
-Promoter - Meaning of.
See Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Sections 2 (c), 3, 4, 9 and II.
2. Relying on the registered deed of conveyance dated 12th September, 1966 duly executed by defendants Nos. 4 and 6 for valuable consideration, copy whereof is annexed as Exhibit C to the plaint, the plaintiffs have filed this suit for a declaration that the plaintiffs are owners of the suit land i.e. the land bearing Survey No. 198 Hissa No. 7 situate in the village of Dahisar, Taluka Borivli, described in Exhibit A to the plaint and shown on the plan at Exhibit B to the plaint. The plaintiffs have sought a further declaration to the effect that none plaintiffs Nos. 1 to 13 have any right, title or interest in the suit land or part thereof. The plaintiffs have sought a declaration to the effect that the various documents relied on by defendants Nos. 1 to 13 referred to in prayer (c) of the plaint are null and void and also a decree for possession, mandatory injunction and various other reliefs. The plaintiffs have sought compensation/mesne profits from defendants Nos. 1 to 13 for their acts of trespass on the suit land in the sum of Rs. 27,26,000/- and a further sum of Rs, 72,000/- per month and various other reliefs. The plaintiffs have south a permanent injunction restraining defendants Nos. 1 to 3 from putting up construction of the suit land or continuing to put up the same. The plaintiffs have sought an order directing the 14 defendant-Corporation-to the effect that the sanction already granted for development on the suit land be suspended and the Municipal Corporation be restrained from issuing Completion Certificate or Occupation Certificate in respect of the structure put on the suit land or any part thereof.
3. The matter was extensively argued. Written submissions have been filed. Compilations have been filed. The relevant facts are short and simple as would be obvious from narration thereof hereinafter.
4. The deed of conveyance dated 12th September 1966, inter alia, states as under:
"And the said Vendors do hereby covenant with the Purchasers that the Vendors have this day handed over clear and full possession of the said lands...."
The above referred provisions in the deed of conveyance binds the parties. Defendants Nos. 4 and 6 were the Vendors and the suit land. The plaintiffs are purchasers there of. Defendants Nos. 4 and 6 now state that they had never handed over possession of the suit land to the plaintiffs. It is not possible to accept this plea in the face of the conveyance, the execution and registration whereof is admitted by the Vendors. The subsequent event referred to hereinafter support the inference that the provision made in the conveyance to the above effect represent the truth.
5. The said deed of conveyance was duly acted upon. By Mutation Entry No. 3072 dated 27th September, 1967 the names of the plaintiffs were entered in the record of rights. Later on, the said entry was deleted without notice to the plaintiffs and the proceedings in respect there of are now pending before the Additional Commissioner, Konkan Division, Bombay Reference to the material facts having bearing on this aspect will be made in latter part of this order at its appropriate place.
6. On 29th February, 1968, the plaintiffs paid land revenue in respect of the suit land. A copy of the receipt issued by the authorities is annexed as Exhibit E to the plaint. It is averred
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
