2012 Supreme(Bom) 1646

High Court of Judicature at Bombay
S.C. DHARMADHIKARI
Mazda Construction Company & Others
Versus
Sultanabad Darshan CHS Ltd. & Others
Writ Petition No.3912 of 2012
Decided on : 31-08-2012

Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 5-A, 10 and 11 - Unilateral deemed conveyance.

       If areas in dispute, are styled as common amenities and claims are contested then that portion cannot be included in area forming part of deemed conveyance. - Competent authority ought to have seen agreement with members of respondent. It ought to have taken into account entitlement of parties in terms of that agreement. If that, agreement stipulates conveyance of right, title land interest of promoters in land and building, which was not crystallized therein, but clauses there of contemplates sub-division of plots and refers to layout which enables construction of building, then, that is stipulation which binds; both sides and which cannot therefore be overlooked in this case. Secondly if there was any doubt or dispute as to what forms subject-matter of deemed conveyance and which dispute is pending before Court, then all more further inquiry ought to have been made by competent authority before issuing certificate under Section 11. Competent authority cannot permit parties to claim something which is beyond their agreement with promoters or other relevant documents. If such is purpose sought to be achieved by insertion of Section 11, then instead of removing hardships of flat purchasers, amendments will give rise to further litigation and complications resulting therefrom. Therefore what should guide competent authority in each case is entitlement in terms of documents which are referred to in Sections 10, 11 and equally in preceding provisions including particulars and details of agreements with flat purchasers.

       Word ’unilateral’ has some definite significance. Once unilateral deemed conveyance i s enforced by competent authority, then, all more when litigation is pending to which both are parties, areas styled as garden and open access should not have been included in order and certificate issued by competent authority. Their inclusion has thus vitiated order of competent authority. There is substance in contentions that competent authority over stepping its limits in this case.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 5-A, 10 and 11 - Unilateral deemed conveyance.

       Unilateral deemed conveyance, enables flat purchasers to acquire promoter’s right, title and interest in land and building. - Amendment in Section 5-A is to set up competent authority for purpose of exercising powers and performing duties under Sections 5, 10, 11. It is not possible to read Section 5-A in isolation but it should be seen in backdrop of what Legislature desired and intended to achieve. Legislature intended that such powers and duties which have to be performed under Sections 5, 10, 11 have not been performed and that causes inconvenience and hardship to flat purchasers. Since they are not organised into proper legal entity such as co-operative, housing society or company, title to property cannot be perfected. Situation arises where Society owns building consisting of flats and apartments but not property. Therefore building belongs to Society but land beneath it does not belong to it or is not owned by it. Such situation presents several obstacles, difficulties and hurdles in development of property, utilization and exploitation of its potential to fullest. In these circumstances and when advantage is taken of delay in execution of conveyance within prescribed time and delivering of documents, that it was intended to set up authority which would convey property by unilateral deemed conveyance. Such conveyance by itself is thus capable of being registered.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 5-A, 10 and 11 - Word "deemed".

       Word ’deemed’ used in statute, means, regard or consider in specified way. - When Legislature is mindful of fact that Unilateral Instrument is to be registered as deemed conveyance, then, all more there is no scope for apprehensions expressed. Word ’deemed’ must therefore be understood accordingly and should be construed by reading it with words preceding it.

       Maharashtra Ownership Flats (Regulation of the Promotion of Construction Sale Management and Transfer) Act, 1963 - Sections 5-A, 10 and 11 - Word "Unilateral".

       Word ’unilateral’ used in statute, means one sided, performed by or affecting only one person, group or country. - Legislature has been careful to provide for appropriate inquiries and opportunities so that certificates should not be issued for asking and equally when Registration officer is approached with unilateral instrument of conveyance it would not be straightaway registered. In this regard word unilateral and its meaning in common parlance is extremely relevant. If it is understood, thus, then, parties like petitioners need not have any apprehension and particularly of loosing and surrendering or taking away their legal rights.