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IN THE HIGH COURT OF BOMBAY
A.S. Doctor, J.
A. H. Wadia Trust - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 555 of 2018
Decided On : 10-04-2023
DEEMED CONVEYANCE - Maharashtra Ownership Flats Act, 2005; Maharashtra Public Trusts Act, 1950 - Sections 2(c), 11, 36 - The court discussed the provisions of the Maharashtra Ownership Flats Act (MOFA), particularly the requirement for a fair hearing for all parties involved in a deemed conveyance application, including landowners. It emphasized that the competent authority must verify the title of the promoter and ensure that all relevant parties are notified. The court also highlighted that any alienation of land owned by a public charitable trust requires prior approval from the Charity Commissioner under the Maharashtra Public Trusts Act. The failure to adhere to these legal provisions influenced the court's decision to set aside the unilateral deemed conveyance order.
Fact of the Case:
The petitioners, a public charitable trust, owned land that was leased to a lessee who subsequently assigned rights to developers. The developers constructed a building and sought a unilateral deemed conveyance of the land without notifying the petitioners, who later challenged the conveyance order.
Finding of the Court:
The court found that the petitioners were not given a fair opportunity to be heard in the deemed conveyance application, which violated principles of natural justice. The court also noted that the developers did not have the title to convey the land, as they were only lessees.
Issues: Whether the petitioners, as landowners, were entitled to be heard in the application for deemed conveyance and whether the unilateral deemed conveyance was valid given the lack of title by the developers.
Ratio Decidendi: The court held that the scheme of MOFA requires that all parties with a potential interest in the land, including the landowner, must be notified and given an opportunity to be heard in deemed conveyance applications. Additionally, the court emphasized that a deemed conveyance can only convey the rights that the promoter possesses, which in this case were insufficient to grant a full conveyance of the land.
Final Decision: The court allowed the writ petition, set aside the order dated 9/12/2013, and stated that Respondent No. 3 could file a fresh application for deemed conveyance if desired.
JUDGMENT/ORDER
1. The present Writ Petition impugns an order dtd. 9/12/2013 passed by Respondent No. 2, granting a Unilateral Deemed Conveyance of land, being Survey No.292, Hissa No.1 (part), C.T.S. No.608, 608/1 to 4, admeasuring 1246 square yards equivalent to 1041.65 square meters, situate at Village Kurla, Chunabhatti, Mumbai Suburban District ("the said land") in favour of Respondent No.3.
THE BRIEF FACTS
2. Petitioner No.1 is a Public Charitable Trust registered under the provisions of the Maharashtra Public Trust Act, 1950 and is admittedly the owner of the said land. Petitioner Nos. 2 to 5 are the Trustees of Petitioner No. 1.
3. The Petitioner No. 1 by a registered Lease dtd. 7/1/1967 granted a monthly lease of the said land to one Asharam Pardeshi ("the Lessee"). The said Lease permitted the Lessee to construct structures on the said land after obtaining the Petitioners' permission. Clause 3 of the said Lease expressly prohibited the Lessee from subletting, mortgaging, creating any third-party rights or parting with possession of the said land, without obtaining prior permission of the Petitioners. The said Lease also provided that in the event of determination of the said Lease, the Lessee would dismantle all structures, standing on the said land and would hand over the said land to the Petitioners in its original condition.
4. The Lessee thereafter assigned all his rights in the said land by executing a General Power of Attorney in favour of one Yogendra P. Doshi and Respondent No. 8 (Rekha Upendra Doshi) ("the Promoters/Developers"). The Promoters/Developers thereafter constructed a multi-storied building upon the said land. The members of Respondent No. 3 are the flat purchasers all of whom have purchased their respective flats from the Promoters/Developers under Agreements for Sale which are stated to be governed by the provisions of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment) Act, 2005 ("MOFA").
5. Given the breaches of the said Lease committed by the Lessee, the Petitioners vide their Advocates' notice dtd. 2/9/2005 terminated the said Lease. The Petitioners thereafter filed a Suit in the Court of Small Causes Mumbai, under Sec. 41 of the Presidency Small Causes Court Act, 1882 against the Lessee and the Promoters/Developers inter alia seeking quiet, vacant and peaceful possession of the said land. The Promoters/Developers in their joint Written Statement the said Suit annexed inter alia (i) a letter dtd. 27/4/1993 addressed by the erstwhile manager of Petitioner No. 1 to the Promoter/Developer granting a no objection certificate (NOC) for developing the said land and (ii) the impugned order.
6. It was pursuant to this that the Petitioners made an application under the provisions of the Right to Information Act, 2005 and obtained copies of the papers and proceedings in the Application for Deemed Conveyance filed by Respondent No.3. It was then that the Petitioners became aware for the first time that the said land had been conveyed in favour of Respondent No.3 pursuant to an Application for Deemed Conveyance to which neither were the Petitioners made a party nor served with a notice of.
7. It was thus that the present Writ Petition came to be filed. Respondent No.3 filed an Affidavit in Reply opposing the Writ Petition and essentially contending that only the Promoter as defined under Sec. 2 (c) of the MOFA is to be joined as a Party to an Application for Deemed Conveyance and that the landowner is neither a necessary party nor is required to be heard when deciding an Application for Deemed Conveyance. Given the issue that fell for consideration in the present Writ Petition, this Court by an order dtd. 17/3/2023 appointed Mr. Mayur Khandeparkar as Amicus Curiae to assist the Court in determining the issues.
SUBMISSIONS OF MR. TRIVEDI ON BEHALF OF THE PETITIONERS
8. Mr. Trivedi at the outset pointed out that there was no dispute that Petition
The court established that in applications for unilateral deemed conveyance under MOFA, all parties with a legitimate interest, including landowners, must be given notice and an opportunity to be hea....
The competent authority under MOFA must properly examine the legality and validity of the deed of conveyance and consider the applicant's eligibility and the promoter's compliance with the obligation....
The main legal point established in the judgment is the limited scope of the Competent Authority's enquiry under section 11 of the Maharashtra Ownership of Flats Act, 1963, and the dismissal of the P....
Co-owners must be made parties and given hearing before Competent Authority grants unilateral deemed conveyance under MOFA Section 11; natural justice mandatory, no prejudice needed to prove where pr....
The main legal point established in the judgment is the nature of power exercised by the Competent Authority under Section 11 of the MOFA Act, emphasizing the obligation of the promoter to convey rig....
The Competent Authority under MOFA cannot adjudicate title disputes; it must fulfill statutory obligations to issue deemed conveyance to the Society.
Subsisting leasehold rights in land and ownership of superstructure preclude deemed conveyance to tenants' society under MOFA without extinguishment proof, valid Section 4 agreements and proper docum....
The court affirmed that a unilateral deemed conveyance can be granted under MOFA despite ongoing litigation, as the statutory rights of flat purchasers are not extinguished by an auction sale.
The Competent Authority's failure to ensure service of notice and adherence to natural justice principles invalidates the ex parte decision regarding Unilateral Deemed Conveyance.
The statutory obligation under Section 11 of MOFA requires the promoter to convey both land and building to the society, and the Competent Authority must enforce this obligation upon the promoter's f....
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