Dismissed

Kanjur Co. Operative Housing Society Ltd. (Federal) v. the State of Maharashtra

Bombay HC10 Jun 2024WP/1086/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a 2013 order granting deemed conveyance. The court held that the petitioner, as a promoter, failed statutory duties for over 30 years and contradicted its own claim of non-hearing by producing a 2013 NOC signed by its Chairman.

What did the court decide?

Writ Petition dismissed with no order as to costs.

Kanjur Co. Operative Housing Society Ltd. (Federal) vs the… — Property and Title | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO.1086 OF 2024

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Kanjur Co-operative Housing Society ...Petitioner Limited (Federal)

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Versus

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The State of Maharashtra ...Respondent

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Mr. Melvyn Fernandese i/by Mr. Deepak Jamsandekar, Advocates for Petitioner.

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Ms. Uma Palsuledesai, AGP, for the Respondent Nos.1 to 5.

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CORAM: MADHAV J. JAMDAR, J. DATED: 10 June 2024

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P. C.

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Heard Mr. Fernandese, learned Counsel for the Petitioner and Ms. Palsuledesai, learned AGP for the Respondent Nos.1 to 5.

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The challenge in this Writ Petition preferred under Article 226 of the Constitution of India is to the Order dated 4th October 2013 passed by the Respondent No.2 i.e. the Competent Authority and District Deputy Registrar, Co-operative Societies (2), East Suburbs, Mumbai in Application No.258 of 2013 filed by the Respondent No.6-Society seeking Deemed Conveyance and by which, accordingly, Deemed Conveyance has been granted.

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It is the submission of Mr. Fernandese, learned Counsel for the

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Petitioner that the impugned Order has been passed without hearing the Petitioner. He submitted that at the relevant time, an Administrator had taken charge of the Petitioner-Society and that he failed to take steps and therefore, none appeared in the matter. He further submitted that instead of Deemed Conveyance, a sublease should have been directed to be executed. He therefore requests that the impugned Order be quashed and set aside and the matter be remanded back to the Respondent No.

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2-Competent Authority.

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At the outset before considering the contention raised by the Petitioner, it is required to be noted that the perusal of the record shows that the impugned Order is dated 4th October 2013 and the present Writ Petition has been filed on or about 30th January 2023 i.e. after about 10 years.

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Insofar as the contention that the Administrator was appointed with respect to the Petitioner-Society, no details are provided in the Writ Petition and the following averment is made :

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“K. The Petitioner states that, although they were served with the notice from the office of District Deputy Registrar (2), Co-operative Societies, the Petitioner could not contest the same as the relevant time the Registrar of Co-operative Societies Maharashtra State, Mumbai had appointed as Administrator for managing the affairs of the Petitioner Society and no action was taken by then Administrator. The members of the Managing Committee were Senior Citizen above 70 years age. As the Administrator has been appointed, the Petitioner Society

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has not received any notice to that effect.”

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(Emphasis added)

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Thus, it is clear that no details are provided as to the period during which the Administrator was in-charge of the affairs of the society.

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Apart from that it is to be noted that in the impugned Order itself, the Competent Authority has observed that the Petitioners have submitted a letter dated 17th March 2013 stating that they have no objection if lease deed or conveyance deed is directed to be executed in favour of Respondent No.6-Society. The Petitioner has submitted a letter dated 17th March 2013 to the Competent Authority. Said letter is annexed at page No.173. The said letter is signed by the Chairman and Secretary of the Petitioner-Society. In the said letter in last paragraph it is stated as follows:

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“ This NOC is given strictly for the purpose of deemed conveyance/ sublease only , and can not be used for any other purpose, like redevelopment etc. a separate NOC from The Kanjur Co-op. Hsg. Society needs to be obtained.”

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Therefore, the said letter clearly falsifies the contention raised by the Petitioner that at the relevant time, the Administrator was In-charge of the Society and that he has not taken steps to appear in the Deemed Conveyance proceedings. In fact, the said letter shows that the society was completely aware about the Deemed Conveyance proceedings and the society has given their written say vide letter dated 17^th March

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Thus, the contention raised that the impugned Order is passed without giving notice to the Petitioner or as the Administrator has failed to appear and the same was passed without hearing the Petitioner is totally incorrect.

¶35

As far as the impugned Order is concerned, the Respondent No.2Competent Authority has taken into consideration several factors which are set out on page Nos.38 and 39. The same are reproduced herein below for ready reference:

¶36

ß1½ vtZnkj laLFksus fu;e 12 izek.ks uequk 7 e/;s fuf’pr d:u fnysY;k vtkZoj :i;s 2000@& pk dksVZ Qh LVWai ykoysyk vkgslR;kiukoj vtZ uksVjh dsysyk vkgs-

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2½ fuf’kxa/k dks-&vkWi&gkSflax lks-fy-] gh laLFkk eqwacbZ miuxjs ftYg;krhy HkkaMwi ¼iw-½ ;k miuxjkrhy ukasn.khd`r laLFkk vlwu frpk uksan.kh dzekad chvks,ek@MCY;w,l@vk;,llh@Vhlh@ 6630@lu 1992-93 vlk vkgs-

¶38

3½ uksan.khd`r lgdkjh laLFksus laLFksP;k ekyeRrsps o.kZu HkkaMwi ¼iw-½] eqacbZ 400 042 ;sFkhy IykkWV dz- 15 lh-Vh-,l- ua- 699 ¼{ks=QG 4773 pkS-ehVj½] ohj lkojdj ekxZ nkrkj dkWyuh eqacbZ 42 vls dsys vlwu R;k tkxsoj laLFksph bekjr vlwu ,dw.k 9 lnfudk 4 xkGs vls 13 lHkkln vkgsr-

¶39

4½ c`gUeqacbZ egkikfydsdMs ekyeRrk dj Hkj.kk dsY;kP;k ikorhph izr lkscr tksMyh vkgs-

¶40

5½ vtZnkj laLFksus lknj dsysys ekyeRrk i=d ikgrk uxj Hkwekiu dz699 ps {ks=QG 477-3 pkS-ehVj brds vlwu /kkjd Eg.kwu n dkatwj dksvkWi- gkS- lkslk- fy- ukokph uksan vkgs-

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6½ mifoHkkxh; vf/kdkjh ;kauh Mh,y,u@,y,uMh@Mh&6063 fnukad 23-11-1986 vUo;s lnj feGdrh fcxj’ksrh vkns’kkph izr lkscr tksMyh

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vkgs-

7½ dkatwj dks-vkWi- gkS- lkslk- fy- o Jh ,-,y- ,UFkkWuh ;kapsr fnukad 11-4-1969 jksth >kysY;k uksan.khd`r HkkMs djkjkus izr lkscr tksMyh vkgsR;kuqlkj lnj feGdr gh Jh ,-,y- , UFkkW uh ;kauk eqG ekyd dkatwj ;kauh 999 o”kkZlkBh HkkMsdjkjkus fnysyh vkgs-

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8½ fnukad 12-03-1987 jksth jsUcks yW a M MsOgyilZ vW.M dkWaUV~DVlZ o Jh lqjsanz dqekj prqosZnh o dYiuk lqjsanz dqekj prqosZnh ;kapsr >kysY;k djkjukE;kr o R;ke/;s lnr feGdrh gh dkatwj dks-vkWi- gkS- lkslkfy- ;kauh Jh ,-,y- ,UFkkWuh ;kauk lcyht oj fnysyh vlwu Jh ,-,y- ,UFkkWuh ;kauh fnukad 20-8-1995 jksth es- jsUcks yW.M MsOgyilZ vW.M dkWUVWDVj ;kauk fodkl dj.;klkBh fnysyh vlwu lnj djkjukE;kr lnfudkaph fodzh vksujf’ki csloj dj.;kr ;koh vlk mYys[k vkgs-

¶48

9½ vWM ,l-,e- ukdoh ;kauh lnj feGdrhckcr fnukad 13-021987 jksth Vk;Vy lfVZfQdsV fnysys vlwu R;kuqlkj lnj feGdr gh ckstkjghr o fodzh dj.;kl ;ksX; vkgs-

¶49

10½ lnj feGdrhps ewG ekyd n dkatwj dks-vkWi- gkS- lkslkfy- ;kauh fnukad 17-03-2013 jksthP;k i=kus feGdrhps vtZnkj laLFksP;k ukos yht MhM ok dUOgs;Ul ns.;kl ukgjdr fnysyh vlwu lnj i=kph izr tksMysyh vkgs-

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11½ c`gUeqacbZ egkikfydsdMhy cka/kdke eatwjhpk udk’kk dzlhbZ@4901@chihbZ,l@,@,u@fnukad 04-03-1986 vUo;s ojhy cka/kdkekl fnysY;k bekjr cka/kdke lq: dsY;kP;k nk[kY;kph izr lkscr tksMyh vkgs-

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12½ c`gUeqacbZ egkikfydsdMhy cka/kdke eatwjhpk udk’kk dzlhbZ@4901@chihbZ,l@,@,u@fnukad 06-02-1982 vUo;s lnj cka/kdkekl eatwjh fnY;kps udk’kko:u Li”V gksrs-Þ

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(Emphasis added)

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English translation of the same as provided by the Petitioner is as follows:

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“Whereas, the following facts have been brought forward

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by the documents presented by the society

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Applicant - Society have attached court fees stamp of Rs.2000/- with application as prescribed by form 7 u/s 12 of MOFa, 1963. Application along with verification is notarized.

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Nishigandha CHSL is a registered society is eastern suburbs of Mumbai Suburban District and its registration number is BOM/WS/ISC/TC/6630/1992-93.

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Registered co-op. Society has described property as plot no. 15 CTS no. 699 admeasuring 477.3 sq.mts., VeerSavarkar rd., Datar Colony, Bhandup east, Mumbai 400 042 having 9 residential units and 4 commercial units which in total are 13 units.

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Copy of property tax received paid to MCGM is annexed.

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After scrutiny of Property Registration Card provided by the applicant- Society, it is observed that CTS no. is 699 admeasuring 477.3 sq. mtrs. And holder is the Kanjur CHSL.

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Copy of the Sub divisional officer’s NA order no. BLN/LND/D-6063 dated 23.11.1986.

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Sub-lease deed between the Kanjur CHSL and A.L. Anthony dated 11.04.1969 is annexed and as per the deed the said property is leased to A.L. Anthony by the Kanjur CHSL, original owner for 999 years.

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By the agreement between M/s Rainbow Land Devleoper and Contractors and Mr. Surendra Kumar Chaturvedi and Mrs. Kalpana Surendrakumar Chaturvedi dated 12.03.1987 and sub-lease A.L. Anthony, sub-lessee A.L. Anthony gave the development rights of the said land to the lessors Rainblow Land developers and contractors and by the sale agreement this units in newly constructed building were to be sold on ownership basis.

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Adv. M.S. Naqvi has given title certificate dated

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13.02.1987 which states that said property is free from encumbrances and is marketable.

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The owner of the said property the Kanjur CHSL, has given NOC dated 17.03.2013 to transfer property in the name of applicant-society by conveyance or lease deed. 11. The copy of CC for construction of BMC approved plan no. CE/4901/BPES/AN dated 04.03.1986. 12. BMC sanctioned plan no. CE/4901/BPES/AN dated 04.03.1986.”

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Thus, the Competent Authority has taken into account the following factual and legal aspects while passing the order of Deemed Conveyance:

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i. The Respondent No.6-Society has been registered in the year 1992-1993.

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ii. The relevant provisions of law i.e. Sections 10 and 11 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (“MOFA”) as well as Rules 8 and 9 of the MOFA Rules provides that, it is the statutory responsibility of the promoter to get the Society registered within a period of four months from the date on which the requisite number of members are available and thereafter to execute the conveyance within a further period of four months after the Society is registered.

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iii. In this case, the plan was sanctioned on 6^th February 1982, and permission to construct the building was granted on 4^th March 1986. It appears that the building was actually occupied by the purchaser before the year 1990 and the Society was registered in the year 1992-1993. Thus, it is the statutory responsibility of Respondent Nos.7 and 8 i.e. promoters to execute the conveyance within a period of four months from the registration of the Society i.e. atleast in the year 1993.

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iv. The Petitioners have submitted a letter dated 17th March 2013 stating that they have no objection if lease deed or conveyance deed is directed to be executed in favour of Respondent No.6-Society.

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Thus, the Competent Authority has passed the order after taking into consideration the relevant factual and legal aspects.

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Insofar as the aspect whether the Petitioner is the promoter, it is relevant to note the definition of the promoter as defined under Section 2(c) of the MOFA, which reads as follows:

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“ Section 2(c) in The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963

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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] [These words were substituted for the

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words 'promoter' means 'a person' by Maharashtra 4 of 2008, (w.e.f. 25-2-2008), Section 2(b).] who constructs or causes to be constructed a block or building of flats , [or apartments] [These words were inserted, by Maharashtra 15 of 1971, Schedule] 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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In this particular case, the Petitioner Federal Society has executed a deed of sublease dated 11^th April 1969 with the Respondent No.7Alappat Lonappan Anthony for a period of 999 years. The Respondent No.7- Alappat Lonappan Anthony executed an agreement dated 20^th August 1985 with the Respondent No.8- Rainbow Land Developers and Contractors and gave right to develop the concerned land as well as to sell the flats constructed to the purchasers. Thus, in fact the Petitioner is also a promoter as per Section 2(c) of the MOFA Act. Therefore, it is also the statutory responsibility of the Petitioner to execute conveyance in favour of Respondent–Society on or before the year 1993. Thus, this is a case where the Petitioner has failed to perform statutory responsibility for a period of about 34 years.

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