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2015 Supreme(Bom) 1201
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
Prakash Arun Apte Proprietor of M/s. A.V. Apte & Company – Petitioner
Versus
Narendra Co-operative Housing Society Limited – Respondent
Writ Petition No. 9844 of 2014
Decided On : 5.8.2015
Advocate Appeared:
Mr. A.A. Kumbhakoni Senior Advocate a/w Mr. T.D. Deshmukh for the Petitioner.
Mr. R.M. Pethe for the Respondent.
Headnote:Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963 - Section 11(1) Urban Land Act, 1976, Sections 6 and 20 Deemed conveyance. - Where exemption order under Section 20 was passed in favour of petitioner on condition that conveyance shall be executed in favour of respondent therefore respondent entitled to deemed conveyance. - It is only because of the exemption order that the construction could be put up on the plot of land in question by the owner through the aegis of the petitioner developer. The owner in the instant case also qualifies to be a promoter as defined under the MOFA. If the owner had not submitted a scheme under Section 20, then the owner would have been divested of the land in question under the provisions of the said ULC Act and the land would have vested in the State Government. The petitioner as a developer is therefore the beneficiary of the order dated 2.8.1979 and the said exemption granted on the basis of the terms and conditions mentioned in the said order. The petitioner now cannot revert back to the lease between the owner and the father of the petitioner to contend that under the said lease the petitioner at the highest can grant a sub-lease to the respondent No. 1 which it has already done. The obligation of the owner and the petitioner as developer would therefore be governed by the exemption order dated 2.8.1979. They were therefore required to execute the conveyance in favour of the respondent No. 1 society, in terms of clause (6) thereof, they having failed to do so the Competent Authority exercising powers under the said Act has rightly intervened and granted deemed conveyance.
R.M. SAVANT, J.
1. At the outset, the Learned Senior Counsel appearing for the Petitioner seeks deletion of the Respondent No. 2 from the array of the Respondents as according to the Learned Senior Counsel for the Petitioner in the context of the challenge raised in the above Petition, the Respondent No. 2 is not a necessary party. The Respondent No. 2 is accordingly deleted at the risk of the Petitioner.
2. Rule. With the consent of the Learned Counsel for the parties made returnable forthwith and heard.
3. The Writ Jurisdiction of this Court under Article 227 of the Constitution of India is invoked against the order dated 28.8.2014 passed by the Competent Authority and the District Deputy Registrar, Cooperative Societies, Pune, by which order, the application for deemed conveyance filed under Section 11(1) of the Maharashtra Ownership of Flat Act, 1963 (for short the said Act), by the Respondent No. 1 society came to be allowed and the deemed conveyance of the property mentioned in the certificate issued on the same day, came to be granted.
4. The Petitioner herein is the proprietor of the firm which has put up the construction on the plot of land in question. The ownership of the said plots of land was that of one S.G. Junjal. The said plots of land were bearing CTS No. 92 and final Plot Nos. 395 and 396 totally admeasuring 1019.6 sq.mts. The said entire plot i.e. comprising of plot Nos. 395 and 396, was leased out to the father of the Petitioner Arun Apte for a period of 98 years by a registered Lease Deed dated 24.1.1975 by the owner. The said lease contained a covenant that the Petitioner was entitled to construct a building consisting of flats on the said plots of land. The said Lease Deed also contained a covenant authorising the Petitioner to create a sub-lease in favour of any person or society as the case may be.
5. It appears that on the Urban Land (Ceiling And Regulation) Act, 1976 (for short ULC Act) coming into force, the original owner filed a return/statement under Section 6 of the said Act and in view of the fact that she was holding land in excess of the ceiling limit, in so far as the urban agglomeration of Pune is concerned, the owner through the Petitioner applied for exemption under Section 20 of the said Act. The said application for exemption was considered by the Competent Authority and by its order dated 2.8.1979 the Competent Authority exempted the land i.e. the land admeasuring 1019.6 sq.mtrs. subject to the terms and conditions mentioned in the exemption order. In the context of the present Petition, clause (6) of the exemption order dated 2.8.1979 is material and is reproduced herein-under:-
“(6) The said firm shall not transfer the exempted and (with buildings thereon) to any other person, by way of sale, mortgage, gift, lease or otherwise, except to proposed or registered cooperative housing society. The conveyance shall be made within a period of one year from the date of this exemption order. The Registration Authorities shall allow conveyance after a “No objection Certificate” is produced from Competent Authority (Urban Land Ceiling), Pune.”
6. After the land was exempted under Section 20, the Petitioner it seems submitted the plans to the Pune Municipal Corporation for putting up a building consisting of 14 flats having stilt plus two floors. Since the FSI was one wherein the plots of lands are situated, the Petitioner was entitled to construct built up area admeasuring 1019.6 sq.mtrs. The Petitioner accordingly put up the building having 14 flats and according to the Petitioner the built up area is admeasuring 797.18 sq.mtrs. It is the case of the Petitioner that there is a balance FSI of 210.45 sq.mtrs. The flat purchasers in the building constructed by the Petitioner comprised themselves in the Respondent No. 1 Cooperative Society which accordingly came to be registered on 7.6.1983. The Petitioner it seems in terms of the covenant of the Lease Deed executed in his favour by the ori
