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 documents; fraud via forged deeds, wrong plans vitiates grant.

JUDGMENT :

MILIND N. JADHAV, J.

1. Heard Mr. Kamat, learned Senior Advocate for Petitioner; Mr. Pagare, learned Advocate for Respondent No.1; Mr. Thorat, learned Advocate for Respondent No.3 and Mr. Gavhane, learned AGP for Respondent No.7 – State. By consent, Writ Petition is heard and disposed of finally.

2. Petition is filed challenging impugned Order dated 20.03.2024 passed by the District Deputy Registrar of Cooperative Societies (for short "Respondent No.2") granting Certificate of Unilateral Deemed Conveyance under Section 11 of MAHARASHTRA OWNERSHIP OF FLATS ACT , 1960 (for short “MOFA”) to Respondent No. 1 – Society.

3. Briefly stated, in or about 1950, one Shri. Amrutlal G. Sonawala, (for short “Original Owner”) was the absolute owner of plot bearing Survey Nos. 111, 112 and 125 corresponding to CTS No. 498, 498/1 to 8, Revenue Village - Aksar Pahadi, Borivali, Mumbai. By Indenture of Lease dated 08.05.1963, Original Owner leased plot of land bearing CTS No. 498A, 498/1 to 3, Village Aksar Pahadi, Borivali, Mumbai (for short “subject land”) to Respondent No. 4. On or about 31.12.1964, Respondent No. 4 agreed to transfer and assign lease of subject land to Petitioner to construct certain structures. Petitioner constructed a ground plus two storey structure on subject land. Municipal Corporation of Greater Mumbai (for short “MCGM”) assessed the structure for property tax and bill was issued for the same.

3.1. On 24.08.1966, Respondent No. 4 entered into registered Deed of Assignment with Petitioner to assign remainder leasehold rights in the subject land and ownership right in the structures constructed thereon to Petitioner. Between 1966 to 1967 Petitioner let out the Units constructed in the ground plus 2 storey structure standing on the subject land to tenants (members of Respondent No.1 Society) on tenancy basis. Thereafter in or about 1976, Original Owner submitted proposal along with building plan to MCGM to construct a ground plus one storey structure on adjacent land bearing old CTS No.498 (Part) and new CTS No.498B however the same was not approved.

3.2. In 1985, Original Owner filed RAE & R Suit No. 398/1217 of 1985 in the Small Causes Court to evict Petitioner and its tenants, however during pendency of aforementioned suit, Original Owner expired and his legal heirs were brought on record and thereafter due to compromise between parties the suit was withdrawn by the legal heir/s of the Original Owner.

3.3. In 2009, Respondent No. 3 i.e. son of Original Owner executed unregistered Deed of Conveyance dated 29.08.2009 with respect to subject land in favour of proposed Respondent No.1 Society. Respondent No.3 executed individual Deeds of Conveyance in favour of all tenants directly to transfer ownership of their respective Units and one such Deed of Conveyance dated 25.03.2010 executed with one tenant viz; M/s. Kundan Industries transferring ownership of Unit / Gala No.3 is relied upon and appended to the present Petition.

3.4. On 11.04.2014, Respondent No. 1 - Society was formed and duly registered by the tenants. On 21.08.2023, Respondent No. 1 – Society filed Application No. 109 of 2023 under Section 11 (3) of MOFA seeking Unilateral Deemed Conveyance Certificate before Respondent No.2 in respect of the subject land and the two standing structures thereon. On 20.03.2024, Respondent No.2 allowed the aforementioned application and issued Unilateral