Dismissed

Shri Harishankar Ramanand Trivedi and Anr. v. the Deputy District Registrar of Co-Op. Hou. Societies and Cometent Authority and Ors.

Bombay HC4 Oct 2022WP/5803/2016

Case brief

AI extract

What is this about?

The dismissal of this writ petition challenging deemed conveyance granted to a co-operative society is affirmed. The Court held that such an order does not conclude the issue of right, title and interest in the property and does not prevent the petitioners from filing a substantive civil suit.

What did the court decide?

Writ petition dismissed with no order as to costs; clarified that future civil suits shall be decided uninfluenced by this order.

Shri Harishankar Ramanand Trivedi and Anr. Vs… — Pension and Retirement Benefits | Bombay HC (2022)

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Pallavi

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Digitally signed by PALLAVI PALLAVIMAHENDRAWARGAONKAR MAHENDRAWARGAONKARDate:2022.10.17 20:03:00 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.5803 OF 2016

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Shri Harishankar Ramandand Trivedi and Anr.…Petitioners

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Versus

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The Deputy District Registrar of Co-operative… Respondents
Housing Societies and Competent Authority and
Ors.

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Mr. Sandesh Deshpande, for the Petitioners.

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Mr. S.D. Rayrikar, AGP for Respondent – State.

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CORAM :MADHAV J. JAMDAR, J.

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DATED :4^th OCTOBER 2022

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P.C. :

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1. Heard Mr. Sandesh Deshpande, the learned counsel

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appearing for the Petitioners and the learned AGP for the Respondent
No.1.

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2.The order impugned in the present petition is order dated
23rd April 2014 passed by the Respondent No.1 – Deputy District
Registrar of Co-operative Housing Societies and Competent Authority,
whereby deemed conveyance has been granted in favour of
Respondent No.4 – Society.

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3.Mr. Deshpande submitted that the Petitioners who are co-
owners and other co-owners entered into a registered development
agreement with Respondent No.3 – Developer on 7th November 1997.
He submitted that Respondent No.3 failed to comply with his
obligations towards the Petitioners and other co-owners as agreed
under the said development agreement dated 7th November 1997. He
submitted that the Petitioner No.2 has already filed Regular Civil Suit
No.151 of 2004 before the learned Civil Judge, Junior Division, Kalyan
and the same was dismissed for default and the restoration application
is pending. He submitted that as there is dispute regarding rights
allotted to the Respondent No.3, Competent Authority should not have
granted deemed conveyance.

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4.A perusal of the plaint in R.C.S. No.151 of 2004 shows that
the said Suit was filed by the Petitioner No.2 seeking substantive relief
that Respondent No.3 – Developer has no right to carry out further
work of construction and/or to encumber and/or to deal in and/or to
dispose of the flats in the building constructed on the suit property
namely piece and parcel of land admeasuring 5440 sq.metres bearing
Survey No.59, Hissa Nos.7A and 7B situate at Village Gajabandhan

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Patherli, Taluka: Kalyan, District: Thane. However, it is admitted
position that the petitioners i.e. co-owners and other co-owners
executed Development Agreement dated 7th November 1997 entrusting
development rights in favour of Respondent No.3. In view of this, it is
relevant to note definition of “Promoter” as defined under Section 2(c)
of Maharashtra Ownership of Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer)(Amendment) Act, 2008
(hereinafter referred to as “MOFA”) which reads as under:

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“(c) “promoter” means a person and includes a partnership firm or a body or association of persons whether registered or not who constructs or causes to be constructed a block or building of flats or apartments for the purpose of selling some or all of them to other persons, or to a company, co-operative society or other association of persons, and includes his assignees; and where the person who builds and the person who sells are different persons, the term includes both. ”

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(Emphasis added)

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Thus, as per the above definition not only the Respondent

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No.3 is the promoter but petitioners and other co-owners are also the
promoters. Under Section 11 of MOFA, it is the statutory responsibility
of the promoter to execute conveyance in favour of the co-operative
society of flat purchasers. The factual position on record show that as
promoters failed to perform their statutory responsibility of execution

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of conveyance, the Respondent No.4 – Society was constrained to
approach District Deputy Registrar (hereinafter referred to as “DDR”
for short) seeking Deemed conveyance. It is further significant to note
that inspite of service of notice and issuance of public notice all the
“promoters’ including petitioners remained absent before DDR. Thus,
there is no infirmity pointed out by learned Advocate for the
petitioners in the impugned order.

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5.It is also to be noted that the nature of order granting
deemed conveyance is well established. In the case of M/s. Shree
Chitamani Builders vs. State of Maharashtra & Ors.1, a Division Bench
of this Court has held that an order granting deemed conveyance will
not conclude the issue of right, title and interest in the immovable
property. It is not as if such an order is passed that the petitioners have
no remedy to question the act of the society on the strength of such
deemed conveyance. The petitioners can still bring a substantive suit
on title. It has been further held that in writ jurisdiction and in the
garb of examining the legality and correctness so also validity of
deemed conveyance the High Court cannot examine these issues. They
concern the right, title and interest in the immovable property.

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1 2016 SCC OnLine Bom 9343

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Therefore, by clarifying that the order of deemed conveyance shall not
preclude or prevent the petitioners from filing a suit and claiming
therein appropriate reliefs, the said writ petition was disposed of.

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6.The above observations are also applicable to the present
case. In view of above, there is no substance in the challenge raised by
the petitioners. The writ petition is dismissed with no order as to costs.

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7.However, it is clarified that if, any civil suit is filed against
the Respondent No.4 – Society, the same shall be decided uninfluenced
by this order as well as order passed by the DDR.

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 (MADHAV J. JAMDAR, J)

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Shri Harishankar Ramanand Trivedi and Anr. v. the Deputy District Registrar of Co-Op. Hou. Societies and Cometent Authority and Ors.

Case brief

What is this about?

What did the court decide?

Shri Harishankar Ramanand Trivedi and Anr. v. the Deputy District Registrar of Co-Op. Hou. Societies and Cometent Authority and Ors.

Case brief

What is this about?

What did the court decide?

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