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2013 Supreme(Bom) 2115
High Court of Judicature at Bombay
MOHIT S. SHAH & M.S. SANKLECHA, JJ.
M/S. Shree Siddharth Construction Builders and Developers
Versus
Shree Saraswati Apartment Co-operative Housing Society Limited & Others
Writ Petition No.1439 of 2012
Decided On : 17-10-2013
For the Petitioner:P.K. Dhakephalkar, Senior Advocate with Gaurav R. Joshi, Yogesh Adhia, Advocates.
For the Respondents:R1, Sanjay Jain along with Ms. Usha Gadagkar, Ms. Premlata Yadav i/by Divya Shah Associates, D.J. Khambata, Advocate General with J.S. Saluja, A.G.P.
Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963 - Section 11(3) Maharashtra Co-operative Society Act, 1960, Section 2(13) Claim of deemed conveyance. - Two societies, independently formed, cannot claim deemed conveyance even if they come together. - In the present case there are only two societies and both have been independently formed. Consequently even if they come together they cannot be classified as federal society. In any event, even if, the deemed conveyance is made in favour of two societies collectively, they would be entitled to aggregate 4568.70 sq. mtrs. and the petitioner would continue to be entitled to balance of 415.76 sq. mtrs. of the said property. The deemed conveyance being made either individually or collectively to the two societies does not in any manner cause any prejudice to the petitioner. It must be pointed out that there is no grievance before us by either respondent No. 1 and/or respondent No. 3 on that account.
M.S. Sanklecha, J.
By this petition under Article 226 of the Constitution of India the petitioner seeks the following reliefs:-
a) A declaration that the amendments made to Sections 2,5,5A, 10,11 and 13 of the Maharashtra Ownership of Flats Act, 1963 (“MOFA”) by Act No.4 of 2008 are ultravires, unconstitutional, null and void.
b) A writ of certiorari to quash and set aside the order dated 26 March 2012 passed by the Competent Authority i.e. District Deputy Registrar (Respondent No.4) appointed under Section 5A of the MOFA and
c) A writ of mandamus directing respondent No.4 and the State of Maharashtra (Respondent No.5) to cancel the conveyance dated 30 May 2012 registered with the office of the Sub Registrar of Assurances, Borivali consequent to the impugned order dated 25 March 2012 passed by respondent No.4.
2) At the hearing no submissions were made on behalf of the petitioner with regard to the declaration sought at (a) above namely, declaring the amendment to the MOFA as unconstitutional. Therefore, we have had no occasion to consider the validity or otherwise of the amendment made to the MOFA by Act No.4 of 2008. So far as the relief sought in clause (c) above is concerned i.e. cancellation of the conveyance dated 30 May 2012 registered with the Office of the Sub Registrar of Assurances, no separate submissions were made as the same would be a consequence of our decision with regard to petitioner's challenge at (b) above to the impugned order dated 26 March 2012 passed by respondent No.4 under MOFA.
3) The genesis of the present petition challenging the order dated 26 March 2012 of respondent No.4 under MOFA is that the petitioner by an agreement dated 29 December 2007 purchased the rights of one Dayaram Damodar Acharya Mithaiwala-HUF (the original owners) in the property i.e. plot of land admeasuring 4739.77 mtrs. bearing CTS No.1404 and 1404/1 to 23 situated at Borivali (“said property”). Further, the petitioner by an agreement dated 29 February 2008 also purchased the rights in respect of the said property available with the Promoter of the said property namely Reliable Construction Company (respondent No.2). The original owner had sold certain rights in respect of the said property to respondent No.2 under agreement dated 12 November 1980 and subsequent conveyance dated 19 December 1986. The predecessor of the petitioner namely respondent No.2 had developed the said property and had constructed its first building thereon in 1982 now known as Shree Saraswati Apartment Co-operative Housing Society Limited (respondent No.1) and agreed to sell flats therein by executing agreements of sale with flat purchasers under the MOFA. The respondent No.2 constructed its second building in the years 1991-92 now known as Saraswati Co-operative Housing Society Ltd. (respondent No.3) and agreed to sell flats therein by executing agreements of sale with flat purchasers under MOFA. The present proceedings have emanated from an application filed by respondent No.1 with respondent No.4 seeking an execution of the deemed conveyance in terms of the sale agreement entered into by respondent No.2 with individual flat purchasers in the building of respondent No.1 under MOFA.
4) Briefly the facts leading to the present petition are as follows:
a) The original owners of the said property by an agreement dated 12 November 1980 agreed to sell the said property save and except a tenanted chawl existing on the said property to respondent No.2.
b) Consequent to the above agreement respondent No.2 as a Promoter under MOFA constructed a building comprising ground plus 6 floors in 1982 and sold flats therein by executing agreement under the MOFA with individual flat purchasers. Subsequently, the purchasers of the said flats formed a Co-operative Society i.e. respondent No.1.
c) On 19 December 1986 the original owners of the said property executed a conveyance of the said property in favour of respondent No.2. This conveyance was of the said pro
