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Writ Petition No. 1439 of 2012. Case: M/s. Shree Siddharth Construction Builders and Developers Vs 1. Shree Saraswati Apartment Cooperative Housing Society Limited, 2. M/s. Reliable Constructions Company, 3. Saraswati Coop. Housing Society Ltd., 4. The State of Maharashtra, 5. District Deputy Registrar Coop. Societies. High Court of Delhi (India)

Judgment Cited in Precedent Map Related
Vincent
Case NumberWrit Petition No. 1439 of 2012
CounselFor Appellant: Mr. P .K. Dhakephalkar, Senior Advocate with Mr. Gaurav R. Joshi and Mr. Yogesh Adhia, Advs. and For Respondents: Mr. Sanjay Jain along with Ms. Usha Gadagkar and Ms. Premlata Yadav i/by Divya Shah, Associates, Mr. D. J. Khambata, Advocate General with Mr. J. S. Saluja, A.G.P.
JudgesMohit S. Shah, C.J. and M. S. Sanklecha, J.
IssueMaharashtra Ownership of Flats Act, 1963 - Sections 2, 5, 5A, 10, 11, 13; Registration Officer under the Registration Act, 1908; Maharashtra Cooperative Societies Act, 1960; Constitution of India - Article 226
Judgement DateOctober 17, 2013
CourtHigh Court of Delhi (India)

Judgment:

M. S. Sanklecha, J.

  1. By this petition under Article 226 of the Constitution of India the petitioner seeks the following reliefs:

    1. A declaration that the amendments made to Sections 2,5,5A, 10,11 and 13 of the Maharashtra Ownership of Flats Act,1963 ("MOFA") by Act No.4 of 2008 are ultravires, unconstitutional, null and void.

    2. A writ of certiorari to quash and set aside the order dated 26 March 2012 passed by the Competent Authority i.e. District Deputy Registrar (Respondent No.4) appointed under Section 5A of the MOFA and

    3. A writ of mandamus directing respondent No.4 and the State of Maharashtra (Respondent No.5) to cancel the conveyance dated 30 May 2012 registered with the office of the Sub Registrar of Assurances, Borivali consequent to the impugned order dated 25 March 2012 passed by respondent No.4.

  2. At the hearing no submissions were made on behalf of the petitioner with regard to the declaration sought at (a) above namely, declaring the amendment to the MOFA as unconstitutional. Therefore, we have had no occasion to consider the validity or otherwise of the amendment made to the MOFA by Act No.4 of 2008. So far as the relief sought in clause (c) above is concerned i. e. cancellation of the conveyance dated 30 May 2012 registered with the Office of the Sub Registrar of Assurances, no separate submissions were made as the same would be a consequence of our decision with regard to petitioner's challenge at (b) above to the impugned order dated 26 March 2012 passed by respondent No.4 under MOFA.

  3. The genesis of the present petition challenging the order dated 26 March 2012 of respondent No.4 under MOFA is that the petitioner by an agreement dated 29 December 2007 purchased the rights of one Dayaram Damodar Acharya MithaiwalaHUF (the original owners) in the property i.e. plot of land admeasuring 4739.77 mtrs. bearing CTS No.1404 and 1404/1 to 23 situated at Borivali ("said property"). Further, the petitioner by an agreement dated 29 February 2008 also purchased the rights in respect of the said property available with the Promoter of the said property namely Reliable Construction Company (respondent No.2). The original owner had sold certain rights in respect of the said property to respondent No.2 under agreement dated 12 November 1980 and subsequent conveyance dated 19 December 1986. The predecessor of the petitioner namely respondent No.2 had developed the said property and had constructed its first building thereon in 1982 now known as Shree Saraswati Apartment Cooperative Housing Society Limited (respondent No.1) and agreed to sell flats therein by executing agreements of sale with flat purchasers under the MOFA. The respondent No.2 constructed its second building in the years 199192 now known as Saraswati Cooperative Housing Society Ltd. (respondent No.3) and agreed to sell flats therein by executing agreements of sale with flat purchasers under MOFA. The present proceedings have emanated from an application filed by respondent No.1 with respondent No.4 seeking an execution of the deemed conveyance in terms of the sale agreement entered into by respondent No.2 with individual flat purchasers in the building of respondent No.1 under MOFA.

  4. Briefly the facts leading to the present petition are as follows:

    1. The original owners of the said property by an agreement dated 12 November 1980 agreed to sell the said property save and except a tenanted chawl existing on the said property to respondent No.2.

    2. Consequent to the above agreement respondent No.2 as a Promoter under MOFA constructed a building comprising ground plus 6 floors in 1982 and sold flats therein by executing agreement under the MOFA with individual flat purchasers. Subsequently, the purchasers of the said flats formed a Cooperative Society i. e. respondent No.1.

    3. On 19 December 1986 the original owners of the said property executed a conveyance of the said property in favour of respondent No.2. This conveyance was of the said property save and except the tenanted chawls in terms of the agreement dated 12 November 1980 as modified and altered by subsequent agreements as recorded in the conveyance.

    4. In 19911992, respondent No.2 constructed the second building of ground plus three floors on the said property. The respondent No.2 sold the flats therein by executing agreements of sale with individual flat purchasers under the MOFA. The purchasers of the flats in second building formed a Cooperative Housing Society i.e. respondent No.3.

    5. The agreements of sale entered into by the promoter i.e. respondent No.2 with the buyers of the flats in respect of both the buildings viz. Respondent Nos. 1 and 3 were identical agreements under the MOFA. The above agreements of sale of flats in clause 16 thereof provides that a transfer of the said property to the society/company/institution as formed by the flat purchasers would simultaneously transfer an area of 1300 sq. yards to the original owner.

    6. On 29 December 2007 the original owner of the said property executed a conveyance in favour of the petitioner in respect of its entire residuary rights in the said property i.e. tenanted chawl subject to existing tenancies.

    7. On 29 February 2008, respondent No.2 executed a conveyance of the balance of its rights in the said property to the petitioner. The aforesaid agreement dated 29 February 2008 specifically provided that the petitioner entered into the shoes of the promoter i.e. respondent No.2 and would at all times do all things necessary to discharge the obligations of respondent No.2 qua various flat purchasers to whom flats in the two buildings of respondent No.1 and respondent No.3 have been sold.

    8. In view of the two conveyance deeds dated 29 December 2007 and 29 February 2008 the petitioner entered into the shoes of the the original owners and the promoterrespondent No.2.

    9. On 1 April 2011, the respondent No.1 made an application dated 28 March 2011 to respondent No.4 seeking a deemed conveyance of the right, title and interest of respondent No.2 in the land and the building standing on the said property. In support of its application for deemed conveyance the respondent No.1 relied upon various documents including the agreement for sale to the individual flat purchasers under the MOFA.

    10. In the proceeding before respondent No.4, the petitioner intervened in its own capacity and also as a power of attorney holder of respondent No.2. During the course of...

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