Managala Madhusudan Sathaye and ors. Vs E-Square Premises Co-operative Housing Society Ltd. and ors. (Bombay High Court)
The Bombay High Court, in Managala Madhusudan Sathaye and Ors. Vs E-Square Premises Co-operative Housing Society Ltd. and Ors., rejected a writ petition challenging an order of deemed conveyance passed by the competent authority under the Maharashtra Ownership of Flats Act, 1963 (MOFA). The petitioners, who claimed to be owners of the property, contended that their development agreement with the developer reserved 50% of the land and constructed area in their favour, together with corresponding rights over car parking, atrium space and terrace area. They argued that the original arrangement contemplated formation of a condominium rather than a co-operative housing society. Despite their objections, the competent authority granted deemed conveyance of the entire property in favour of the respondent society. The petitioners also stated that they had initiated proceedings challenging the society’s registration.
The respondent society opposed the petition, pointing out that the procedure for formation of a condominium under the Maharashtra Apartment Ownership Act, 1970 had never been initiated, although the development agreement dated back to 12 October 2009 and construction had been completed in December 2012. It was further submitted that the developer had executed agreements with flat purchasers under Section 4 of MOFA. The respondents relied on the Bombay High Court’s decision in Zainul Abedin Yusufali Massawawala v. Competent Authority, contending that disputes concerning ownership, title and interest in immovable property could be adjudicated only by a competent civil court. The petitioners themselves had acknowledged that the disputed questions required evidence and could not properly be determined in summary proceedings before the competent authority.
The High Court followed the principles laid down in Mazda Construction Company & Others v. Sultanabad Darshan CHS Ltd. & Others and Angeline Randolph Pereira v. Suyog Industrial Estate Premises Co-operative Society Ltd., holding that disputed questions of title and ownership cannot be examined in writ jurisdiction merely by challenging the legality or validity of a deemed conveyance order. The Court clarified that the petitioners were free to institute a substantive civil suit for adjudication of title and appropriate relief, if not already filed. Such proceedings would be decided independently, without being influenced by the competent authority’s deemed conveyance order. Accordingly, the writ petition was rejected, with all contentions kept open, leaving the parties’ substantive property rights to be determined by the competent civil court.
Cases Discussed
- Zainul Abedin Yusufali Massawawala and Ors. Vs Competent Authority, District Deputy Registrar of Co-operative Housing Societies, Mumbai and Ors. — Writ Petition No. 2163 of 2014, decided on 29 June 2016 (Bombay High Court). Relied upon regarding adjudication of disputed property rights by civil courts.
- Mazda Construction Company & Others Vs Sultanabad Darshan CHS Ltd. & Others — 2013 (2) ALL MR 278 (Bombay High Court). Relied upon for the limits of deemed conveyance proceedings and writ jurisdiction.
- Angeline Randolph Pereira Vs Suyog Industrial Estate Premises Co-operative Society Ltd. — 2018 (6) ALL MR 729 (Bombay High Court). Followed regarding disputed title questions and substantive civil proceedings.
FULL TEXT OF THE JUDGMENT/ORDER OF BOMBAY HIGH COURT
Heard learned Counsel for the Petitioners.
2. The order under challenge is passed by the competent authority under the provisions of the Maharashtra Ownership of Flat Act 1963 (for short ‘MOFA’). It is the case of the Petitioners that they being the owners entered into the development agreement with the Respondent No.2 – developer. My attention is invited to the agreement entered into by one of the fat purchasers wherein it is specifically mentioned that 50% of the entire land & constructed portion belongs to the owner. According to learned Counsel the Petitioners are also entitled to 50% car parking, atrium space, terrace area. According to learned Counsel, they are therefore the owners of the 50% constructed area along with the parking, atrium and terrace area. It is the contention of the learned Counsel that what was agreed was to form a condominium and not the Society. He submits that despite raising specific objections, the competent authority proceeded to pass the order granting deemed conveyance in favour of the Respondent No.1 – Society in respect of the entire portion. Learned Counsel submits that though the Society is now registered, the Petitioners have filed appropriate proceedings challenging the registration. For all these reasons, he submits that the impugned order passed by the Deputy Registrar granting deemed conveyance calls for interference.
3. On the other hand, learned Counsel for the Respondent No.1 – Society invited my attention to the various provisions of the Maharashtra Apartment Ownership Act, 1970. He submits that the procedure as contemplated under the said Act regarding formation of the condominium was never initiated by the Petitioners though the agreement was executed as far back as on 12/10/2009 and even the construction of the building was completed in December 2012. Moreover, the developer has entered into the agreement under Section 4 of the MOFA Act with the fat purchasers. Learned Counsel for the Respondents invited my attention to the pleadings in the Petition. In clauses (i) & (j), the Petitioners have taken the contention that the competent authority could not have decided all these issues as the facts of the present case require leading and appreciation of evidence by both the parties and this is possible only in the Civil Court and not before Respondent No.3. It is further averred in the Petition that entire procedure to decide the Application before Respondent No.3 is otherwise summary in nature. It is pointed out that Petitioners have already instituted a suit for injunction.
4. Learned Counsel for the Respondents relied upon the decision of this Court dated 29/06/2016 in the case of Zainul Abedin Yusufali Massawawala and ors. Vs. The Competent Authority District Deputy Registrar of Co-operative Housing Societies,Mumbai and ors. in Writ Petition No. 2163 of 2014 in support of his contention that the dispute of right, title, interest or otherwise in the suit property can be decided only by the Civil Court.
5. I find force in the submissions of learned Counsel for the Respondent – Society. Considering the nature of the dispute and in the light of the law laid down by this Court in the case of Mazda Construction Company & Others v/s Sultanabad Darshan CHS Ltd. & Others1 and in the case of Angeline Randolph Pereira Vs. Suyog Industrial Estate Premises Co-operative Society Ltd., wherein this Court has clearly held that in the writ jurisdiction and in the garb of examining the legality and correctness so also validity of deemed conveyance, Court cannot examine the issues which are essentially disputed. The Petitioners can bring a substantive suit for title or otherwise before the competent civil court.
6. In this view of the matter and considering the law laid down by this Court in the Mazda Construction Company & Others & Angeline Randolph Pereira (supra), I proceed to pass the following order.
O R D E R
(i) The Petitioners would be at liberty to file a substantive suit for adjudication of title and appropriate reliefs if not already filed, in respect of the property in question.
(ii) The same can be decided independently without being infuenced by the fact that an order of deemed conveyance of the property in question is passed by the competent authority.
7. Keeping all contentions open, Petition is rejected.
Notes:
1 2013 (2) ALL MR 278
2 2018(6) ALL MR 729
