Dismissed

Sureshkumar Jawaharlal Shanklesha and Ors. v. Gopaldham Co-Hou. Soc. Ltd. Thr Chairman A.R. Jain and Ors.

Bombay HC20 Jan 2022WP/628/2022

Case brief

AI extract

What is this about?

The High Court dismissed a Writ Petition challenging an order granting temporary injunction to a Cooperative Housing Society. The Court held that the Society's title vested in them under Maharashtra Ownership of Flats Act, 1963, making the Petitioners' claim defective and the injunction justified.

What did the court decide?

Petition dismissed with no interference in the lower appellate court order granting temporary injunction.

Sureshkumar Jawaharlal Shanklesha and… — Constitutional and Fundamental Rights | Bombay HC (2022)

¶1

WP-628-22.doc

¶2

BDP-SPS-TAC

¶3

BHARAT DASHARATH PANDIT

¶4

Digitally signed by BHARATDASHARATH PANDIT Date: 2022.01.27 17:03:44 +0530

¶5

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 628 OF 2022

¶6

Shri Sureshkumar Jawaharlal
Shanklesha and Ors.

¶7

…...Petitioners

¶8

V/s
Gopaldham Cooperative

¶9

Housing Society Ltd. and Ors.…..Respondents

¶10

Mr. Girish Godbole a/w Mr. Sumit Kothari i/b Atharva Dandekar,
Advocates for the Petitioners.

¶11

Mr. Prafulla Shah i/b Ms. Gunjan Shah for Respondent No.1.
Mr. Sandeep D. Shinde for Respondent Nos. 4 and 5.

¶12

 CORAM: NITIN W. SAMBRE, J.

¶13

 DATE: JANUARY 20, 2022

¶14

P.C.:-

¶15

1]Present Petition is directed against the order dated 15th

¶16

December 2021 passed in Misc. Civil Appeal No. 62 of 2021
(Gopaldham Co-operative Housing Society Limited vs. Jai Malhar

¶17

Builders and Developers and 9 Others) wherein the Appellate Court

¶18

ordered injunction, restraining Defendant Nos. 3 to 8 or persons
claiming through or under them from carrying out construction over
the suit property.

¶19

2] Facts necessary for deciding present Petition are as under:-

¶20

1/12

¶21

WP-628-22.doc

¶22

3]One Suresh Teli was an owner of the land bearing CTS Nos.2089
and 2090 together admeasuring 389.6 sq. mtrs. and 63.5 sq. mtrs.,
totaling to 453.10 sq. mtrs. On the said property, stood a building
being House No.26 which is identified as ‘Gopal Niwas’. The said
Suresh Teli in the capacity of Proprietor of M/s Dhanshri Builders,
developed said plot, thereby constructing a building consisting of
ground plus four floors, which is identified as ‘Gopaldham’. The
aforesaid construction was carried out pursuant to the permission
granted by the Planning Authority on 24th April, 1991. Flats in the
said building Gopaldham were purchased by various persons pursuant
to agreement of sale and in view of provisions of the Maharashtra
Ownership of Flats (Regulation of the promotion of construction, sale,
management and transfer) Act, 1963 and in accordance with the
provisions of the Maharashtra Apartment Ownership Act, 1970,
Plaintiff-Society was formed.

¶23

4]It is the case of the Petitioners/Defendants that vide registered
Sale Deed dated 17th March, 2009, they have purchased the land
admeasuring 194.8 sq. mtrs out of City Survey No. 2089 alongwith the

¶24

2/12

¶25

WP-628-22.doc

¶26

structure Gopal Niwas bearing House No.26. It is claimed that the
said structure Gopal Niwas was occupied by four tenants viz. Gala
No.4 and Room Nos. 1, 3, 4 and 10. Vide various surrender deeds
these tenants surrendered their tenancy rights from 24th March, 2009
to 28th January, 2010.

¶27

5]On 28th December, 2010, an application was moved for
measurement of the aforesaid property and C.T.S. No.2089/1 was
carved out from original City Survey No. 2089, consisting of 194.80
sq. mtrs. The aforesaid area of 194.8 sq. mtrs was rectified vide
Rectification Deed dated 17th June, 2010 to 140.10 sq. mtrs. to the
extent of purchase made by the Petitioners/Defendants. The tenants
were provided with permanent alternative accommodation vide
agreement dated 4th June, 2015. It is then claimed that after aforesaid
sub-division, pursuant to the request made, Municipal
Corporation/Planning Authority granted permission for development
of Plot No.2089/1 and Survey No.2090 vide Commencement
Certificate dated 12th March, 2019, resulting into filing of the present
suit.

¶28

3/12

¶29

WP-628-22.doc

¶30

6]Mr. Godbole, learned Counsel for the Petitioner while
questioning the order of grant of injunction by the lower appellate
court would make following submissions:-

¶31

(a) The Appellate Court committed an error of law in
not remanding the matter to the Trial Court once having
noticed that order of the Trial Court refusing injunction
lacks reasons;

¶32

(b) the suit claim brought into action by the
Respondents/Plaintiffs at much belated stage,
particularly when the Sale Deed in favour of the
Petitioners was executed way back in 2009 i.e. on 17th
March, 2009, subsequent to which measurement was
carried out, plans were sanctioned and the construction
has commenced.

¶33

7]According to him, either matter needs to be remanded to the
Trial Court for recording appropriate reasons or, in the alternative, this
Court should quash and set aside the impugned order passed by the
Appellate Court, whereby injunction is ordered. So as to

¶34

substantiate the claim that injunction cannot be granted at belated
stage and also relying on principles governing grant of temporary

¶35

4/12

¶36

WP-628-22.doc

¶37

injunction, support is drawn from the judgments of the Apex Court in
the matter of Mandali Ranganna and others vs. T. Ramchandra and
others reported in (2008) 11 SCC 1 and in the matter of Ambalal
Sarabhai Enterprise Limited vs. KS Infraspace LLP Limited and Anr
reported in (2020) 5 SCC 410.

¶38

8]While countering submissions, learned Counsel for
Respondents/Plaintiffs would support the judgment of the Appellate
Court, granting injunction based on the material available on record
and as such prayer for rejection of the Petition is made.

¶39

9] Considered submissions.

¶40

10]Vide agreement dated 9th December 1994 M/s Dhanshri Builders
through its Proprietor Suresh Teli who is also an owner of the suit
property, has agreed to develop the property in favour of members of
the Plaintiff-Society by various agreements. The Schedule in the said
agreement reads thus:-

¶41

“ALL THAT PIECE & PARCEL of Gaonthan land,
lying and situated at kasbe of Kalyan, within

¶42

5/12

¶43

WP-628-22.doc

¶44

Registration District Thane, sub-Registration,
Kalyan, within the limits of Kalyan Municipal
Corporation bearing,

¶45

 C.T.S. No. Area (sq. mtrs.)

¶46

 2089 389.60
 2090 63.50
 ----------
 453.10
 -----------

¶47

 as bounded as follows:

¶48

 ON OR TOWARDS EAST: Road (kasarhat lane)
 ON OR TOWARDS WEST: C.T.S. NO.2087 & 2092
 ON OR TOWARDS NORTH: C.T.S. NO.2088/1 to 7
 ON OR TOWARDS SOUTH : Road.

¶49

 together with all easement rights etc.”

¶50

11]The said owner has got sanctioned the structure which is
particularly identified in the present proceedings as Gopaldham on
C.T.S. Nos.2089 and 2090, area admeasuring 453.10 sq. mtrs. The
sanction was granted vide building permission dated 24th April, 1991
given by Respondent-Municipal Corporation. The said property was
developed in accordance with the provisions of the Maharashtra
Ownership of Flats (Regulation of the romotion of construction, sale,

¶51

6/12

¶52

WP-628-22.doc

¶53

management and transfer) Act, 1963 (hereinafter referred to as
“MOFA, 1963). The recitals in the said agreement for sale in
categorical terms provide that rights are created in the said property
mentioned in the Schedule referred to above of the occupiers who are
residing in structure Gopaldham pursuant to various agreements. The
said property is freehold land i.e. without any restrictions on the right
to transfer and total FSI exhausted in the said construction is 453.10
sq. mtrs. The balance FSI/FAR, if any, after construction of
Gopaldham, if available, was at the disposal of the promoter/builder
till registration of the Society and post registration, the said FSI was to
vest in Respondent/Plaintiff viz. Society. Recital in the agreement
referred to above, particularly clause (4) reads thus:-

¶54

“(4) ………… The residual F.A.R. (FSI) in the plot
or the layout non-consumed will be available to the
PROMOTERS / BUILDERS till the registration of
the society whereas after registration of such
society the residual F.A.R. (FSI) shall be available to
such society.”

¶55

12]Apart from above, the said owner has agreed to conduct himself
with members of Plaintiff-Society in accordance with the provisions of

¶56

7/12

¶57

WP-628-22.doc

¶58

the MOFA, 1963. The owner Teli further agreed to transfer the land
and building in favour of the Co-operative Housing Society within 12
months of registration of the Co-operative Housing Society by
executing or causing to execute necessary Conveyance Deed. Recital
of the said agreement, particularly para 12 reads thus :

¶59

“(12) SUBJECT to the terms and conditions of this
agreement the PROMOTERS/ BUILDERS shall
within 12 moths of Registration of co-operative
society as aforesaid cause to be transferred the
land and the said new building in favour of such
co-operative housing society by executing or
causing to be executed the necessary conveyance
deed as stated above.”

¶60

The said owner has agreed to execute Transfer Deed or any such
documents as are necessary in respect of the premises.

¶61

13]In the aforesaid background, it is apparent that when the
building Gopaldham was developed, what was agreed to by the owner,
was to transfer the entire property being C.T.S. Nos. 2089 and 2090
and as such hardly any open land/F.S.I. was left at the disposal of the

¶62

8/12

¶63

WP-628-22.doc

¶64

said owner. It appears that the Petitioners purchased the land out of
above City Survey Numbers. Contrary to the transfers already
effected by the owner, Petitioners have secured permission from the
local Planning Authority i.e. Kalyan Dombivali Muncipal Corporation
and has started developing the same. As such, primarily it appears
that the erstwhile owner Mr. Suresh Teli, after developing the building
Gopaldham, was not left with any land to transfer the same in favour
of the Petitioners. The Transfer Deed was effected in favour of the
Petitioners in 2009. The Petitioners thereafter have got executed
Correction Deed, thereby correcting area from City Survey No. 2089 to
140.10 sq. mtrs. and thereafter secured permission from the Municipal
Corporation for carrying out development.

¶65

14] In the aforesaid background, on merit, it is apparent that Petitioners have no lawful claim or title to the suit property. In my opinion, by very conduct of its owner Mr. Suresh Teli, as discussed hereinabove, land in question appears to have been prima faice vested in Plaintiff-Co-operative Housing Society. The very title of the Petitioners/Defendants is defective.

¶66

9/12

¶67

WP-628-22.doc

¶68

15]In the aforesaid backdrop, order of grant of injunction by the
lower appellate court is quite justified as the order is in tune with the
provisions of the MOFA, 1963, as the property mentioned in the
Schedule or in the suit claim stood vested in the original Plaintiff.

¶69

16]The Appellate Court while considering the claim for grant of
temporary injunction appears to be sensitive to the aforesaid conduct
of the present Petitioners i.e. purchasing the land without verifying the
title and noticed that in case if Petitioners are permitted to carry out
the construction great and irreparable loss will be caused to the
Plaintiff, as third party rights shall be created thereby destroying the
original structure of the property. As such, considering the balance of
convenience and prima facie case, Appellate Court was justified in
granting temporary injunction.

¶70

17]As far as contention of Mr. Godbole, learned Counsel for the
Petitioners that matter should have been remanded to the trial court
for want of reasons is concerned, it appears that the Petitioners instead
of consenting/agreeing for remand has contested the appeal on merit.
After having suffered an order of temporary injunction, by way of

¶71

10/12

¶72

WP-628-22.doc

¶73

afterthought, Petitioners have come out with the prayer for remand.
As such, said contentions are rejected, as the Petitioners themselves
have invited findings on merit of the matter from the Appellate Court.

¶74

18]As far as second contention as regards preferring suit at belated
stage is concerned, primarily it appears that Plaintiff-Society is not
shown to be party to any of the Conveyance Deeds. Atleast, no such
case is demonstrated by the Petitioners before the Court below or this
Court. In view of provisions of the MOFA, 1963, particularly Sections
10 and 11, the statutory liability of erstwhile owner Mr. Suresh Teli
does not empower him to enter into another Sale Deed of transfer of
the property in favour of the Petitioners. In view of legal fiction, title
of the suit property stood vested in the Plaintiff-Society. After the title
stood vested in the Plaintiff-Society, the claim of the
Petitioners/Defendants in getting building permission on 12th March,
2019 is not at all justified, particularly when the said act is contrary to
the provisions of the MOFA, 1963. The Petitioners themselves have
come out with a case that the Plaintiff-Society is consisting of
purchasers of flats pursuant to the provisions of the MOFA, 1963. As
such, after permission was granted on 12th March, 2019, it cannot be

¶75

11/12

¶76

WP-628-22.doc

¶77

said that Plaintiffs have approached the Trial Court at belated stage.

¶78

19]It is also not demonstrated by the Petitioners/Defendants as to
whether during the course of carrying out measurement from City
Survey, applying for sub-division of plot, getting sanction from the
Planning Authority, the fact about development of ‘Gopaldham’ was
brought to the notice of the authorities.

¶79

20]In the aforesaid backdrop, reliance placed by the learned
Counsel for the Petitioners on the judgment of the Apex Court in the
matter of Mandali Ranganna (supra) and Ambalal Sarabhai
Enterprise Limited (supra) will be hardly of any assistance.

¶80

21]In that view of the matter, no case for interference in
extraordinary jurisdiction is made out. Petition as such fails and same
stands dismissed.

¶81

(NITIN W. SAMBRE, J. )

¶82

12/12

Sureshkumar Jawaharlal Shanklesha and Ors. v. Gopaldham Co-Hou. Soc. Ltd. Thr Chairman A.R. Jain and Ors.

Case brief

What is this about?

What did the court decide?

Sureshkumar Jawaharlal Shanklesha and Ors. v. Gopaldham Co-Hou. Soc. Ltd. Thr Chairman A.R. Jain and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

State of Maharashtra through Collector Pune Vs Ganesh Mahadeo Khedkar

Mrs. Surekha Hanumantrao Pawar Thru Poa Hanumantrao Laxmanrao Pawar Vs Mrs. Harsh Nikhil Mehta and Ors.

Avinash Ashokkumar Jadhav, Thr. Poa, Amarjeet Premsing Tandale Vs Ashokkumar Lagmanna Jadhav

Ghanshyam Narayan Talele and Anr. Vs Pramod Swapna Co-Operative Housing Society Limited and Ors.

Vasant Govind Chavan Vs Smt. Mangla Dattatraya Gurav and Ors.

Subhash Banwarilal Kedia Vs the State of Maharashtra and Anr.