IMPORTANT POINT
The court established that the promoter's obligation under MOFA to convey property to the society is paramount, and the competent authority's role is limited to ensuring compliance with this obligation.

JUDGMENT :

MADHAV J. JAMDAR, J.

1. By the present Writ Petition preferred under Article 226 of the Constitution of India, the Petitioner is challenging the legality and validity of the Order dated 06.10.2023 passed by the Competent Authority and the District Deputy Registrar, Co-operative Societies, East Suburban, Mumbai in Application No. 32 of 2018 filed under Section 11 of The Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (“MOFA”). By the impugned Order, the Competent Authority issued Certificate of entitlement of unilateral Deemed Conveyance of the land bearing CTS No. 195/170 of village-Ghatkopar, Taluka-Kurla, Mumbai Suburban District, admeasuring 2047.71 sq. meter and building of the Petitioner-Society having ‘A’ ‘B’ or ’C’ and ‘D’ wings thereon.

2. At the outset, it is required to be noted that in the Deemed Conveyance Application, the Petitioner-Society has sought unilateral Deemed Conveyance of the land admeasuring 2843 sq. meter, whereas by the impugned Order, the Petitioner-Society has been allotted Deemed Conveyance of land only admeasuring 2047.71 sq. meter. The Petitioner has challenged the Order granting Deemed Conveyance only to the extent of not allotting the same for the entire area of 2843 sq. meter and granting only to the extent of 2047.71 sq. meter.

3. Before setting out the submissions of learned Counsel appearing for the rival parties and consideration of the same, it is necessary to set out certain factual aspects:

(i) The subject matter of the present Writ Petition is amalgamated plot of land bearing Plot No. 149 admeasuring 1337.76 sq. meter and Plot No. 156 admeasuring 1504.98 sq. meter. These two plots were amalgamated in one plot aggregating to 2843 sq. meter (“said land”).

(ii) The said land was transferred by one Parmeshwaridevi Gordhandas in favour of Respondent No. 2-Parmeshwaridevi Garodia Trust vide Deed of Trust dated 28.10.1970 (“the trust”). The said trust, being entitled to the said land constructed a building with four wings comprising of flats and shops in accordance with the plans approved by the MCGM including a building in the centre of the subject land known as “The Cold Storage Building.” The flats and various persons by the trust in or about 1973-74.

(iii) The purchasers of the said flats/shops formed a Co-operative Housing Society namely “Kashmir Kunj Co-operative Housing Society Ltd.” on 12.10.1987. The name of the Society was, thereafter, changed to “Garodia Co-operative Housing Society Ltd.”

(iv) On 26.11.2018, the Petitioner-Society filed an Application with the Competent Authority seeking Deemed Conveyance. By the Order dated 15.06.2019, the Competent Authority dismissed the said Application, as not maintainable.

(v) On 26.04.2022, the Petitioner-Society challenged the said Order by filing W.P. No. 2749 of 2022. A learned Single Judge by Order dated 10.07.2023, allowed the said Writ Petition and remanded back the said Deemed Conveyance Application for fresh cosideration by the Competent Authority.

(vi) Respondent No. 7 had filed an Intervention Application dated 23.08.2023 in the said Deemed Conveyance Application on the basis of unregistered Gift Deed dated 19.04.2023. The Competent Authority by Order dated 29.08.2023, allowed the said Intervention Application of the Respondent No. 7.

(vii) On 06.10.2023, the Competent Authority granted Deemed Conveyance in favour of the Petitioner-Society. However, the said Deemed Conveyance has been granted only with respect to the part of the land as set out herein above. As the Deemed Conveyance by the Petitioner-Society and same has been granted only to the extent of 2047.71 sq. meter, the Petitioner-Society has challenged the said order.

4. Mr. Shah, learned Counsel for the Petitioner-Society for challanging the impugned Order raised the following contentions:

(i) The Competent Authority has overlooked the directions given by a learned Single Judge by Order dated 06.10.2023 pas