2024:BHC-OS:3941 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURUSDICTION WRIT PETITION (Lodg.) NO. 14346 OF 2023 Riddhi Gardens Building No. A1, A2 Co-operative Housing Society Limited ....Petitioner V/s.

District Deputy Registrar, Co-operative Societies, Mumbai City (4), Competent Authority and Ors. ....Respondents WITH INTERIM APPLICATION (Lodg.) No. 1560 OF 2024 IN WRIT PETITION (Lodg.) No. 14346 OF 2023 Jai Ganesh SRA Co-operative Housing Society Ltd. … Applicant V/s.

Riddhi Gardens A1-A2 CHS and Others …. Respondents ___________

Mr. Mayur Khandeparkar with Mr. Rahul Kedar & Mr. Tanuj Lodha i/

b Lodha & Lodha Advocates, for Petitioner.

Mr. Vishal Kanade with Mr. Rakesh V. Misar, Ms. Aastha Pande & Ms.

Rupali Jadhav, for Respondent No.13.

Mr. Amrut Joshi with Ms. Stenna Fernandes i/b Mr. Ashish T. Suryawanshi, for Applicant in Interim Application (L) No. 1560 OF

2024.

Mr. Mohit Jadhav, Additional Government Pleader with Ms.

Gaurangi Patil, AGP for State, Respondent No.1.

___________

CORAM : SANDEEP V. MARNE, J.

Judg. Resd. On : 29 February 2024.

Judg. Pron. On : 08 March 2024.

JUDGMENT :

1. Rule. Rule is made returnable forthwith. With the consent of the learned counsel appearing for the parties, petition is taken for final hearing and disposal.

A. ISSUES

2. Petition raises two broad issues:

(i) Whether the Competent Authority, while exercising power of issuing a certificate of unilateral deemed conveyance under Section 11 of MOFA, can take cognisance of an interest or a right in the conveyed land, which is created by a document other than the Agreement executed under Section 4?

(ii) Given the settled position that validity of such interest or right in respect of conveyed land can only be agitated in a civil suit, while relegating parties to exercise their remedies before a Civil Court, whether incorporation of such interest or right in the certificate of unilateral deemed conveyance should be retained or removed?

B. THE CHALLENGE

3. The issue arise in the light of challenge set up by Petitioner-Society to the certificate of unilateral deemed conveyance issued by the District Deputy Registrar, Co-operative Societies, Mumbai City-4 and Competent Authority (Competent Authority) issued under the provisions of Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). By the impugned Order and Certificate, the Society is actually granted unilateral deemed conveyance of the land and building as desired by the Society. However, the grievance of the Society is about incorporation of a caveat by the Competent Authority in the certificate whereby conveyance of the land is made subject to the right of access to the buildings on neighbouring plots, not forming part of the layout in which Society’s building is situated. The issue that arises for consideration is whether the Competent Authority, while issuing certificate of deemed conveyance under Section 11 of the MOFA, can take into consideration any document foreign to agreements executed with Flat purchasers under Section 4 of the MOFA and make the conveyance subject to the right created under such document.

C. FACTS

4. M/s. Asian Constructions (Respondent No.13) undertook development in respect of Plots bearing CTS No.677/B/1, 677/B/3, 677/B/4 and 653/A/1B/1 at Village-Malad (East), Mumbai Suburban District situated at General Arun Kumar Vaidya Marg, Malad (East), Mumbai and it got a layout sanctioned for the aforestated plots (the said layout). In pursuance of development permissions issued by the Municipal Corporation of Greater Mumbai (MCGM), has constructed multiple buildings on the layout. The Developer entered into agreements for sale of flats constructed in such buildings as per Section 4 of the MOFA. The Agreements reserved right of the Developer to revise/amend the layout plans as well as building plans and to consume additional FSI. It appears that six cooperative societies have been formed