Full Judgment Text
2023:BHC-OS:4171
1 Judgment-WP 555-18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.555 OF 2018
1. A. H. Wadia Trust
A public Charitable Trust registered under
The Maharashtra Public Trust Act, 1950
Under Registration No.PTR No.Bom E-470,
Having its office at :
70, Temple Bar Building, Dr. V. B. Gandhi Marg,
Mumbai 400023.
2. Jehangir Adi Wadia
3. Muncherji Nusserwanji Muncherji Cama
4. Adil Jehangir Wadia
5. Sheroo Jehangir Wadia
Plaintiff Nos.2 to 5, being the present Trustees
of the Plaintiff No.1 A.H. Wadia Trust, having their
office at 70, Temple Bar Building, Dr. V. B. Gandhi Marg,
Mumbai 400 023. … Petitioners
Versus
1. State of Maharashtra
P.W.D. Building, High Court Compound,
Mumbai 400 023.
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2. District Deputy Registrar of Co-operative
Societies (II),
Eastern Suburban, Mumbai, in his capacity
as Competent Authority under Section 5A of
nd
Floor, Konkan Bhavan,
MOFA, having his office at 2
Ward No.201, Navi Mumbai 614.
3. Jai Anand Co-operative Housing Society Limited,
a Co-operative Housing Society, registered under
the provisions of the Maharashtra Co-operative
Societies Act, 1960, having its registered office at
CTS No.608, 608 (1 to 4), Jawakar Lane, Chunabhatti (E),
Mumbai 400022.
4. Subedar Asharam Pardeshi,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
5. Jaiprakash Asharam Rajak,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
6. Damayanti Asharam Rajak,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
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7. Sadhana Jethulal Kanojia,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
8. Rekha Upendra Doshi,
th
Floor, A Wing, Bhagnagri Society,
406-407, 4
NSM Marg, Near Chunabhatti Station, Sion,
Chunabhatti West, Mumbai 400022.
9. Payal Jignesh Shah,
st
Floor, A Wing, Plot No.208,
Flat No.15, 1
Meena Sadan, Sion East, Mumbai 400022.
10. Nirali Kunal Gathani,
Flat No.19-20, Ground Floor, B Wing,
Bhagnagri Society, NSM Marg,
Near Chunabhatti Station, Sion,
Chunabhatti West, Mumbai 400022. … Respondents
-----
Mr. Maneesh Trivedi a/w Tinaz Kapadia i/by LR & Associates for the Petitioners.
Mr. Manish Upadhye, AGP for Respondent Nos.1 and 2.
Mr. Pramod N. Patil a/w Mr. Ajit Hon a/w Mr. Shamsundar Solanke for
Respondent No.3.
Mr. Mayur Khandeparkar, Amicus Curiae a/w Ms. Anisa present.
-----
CORAM : ARIF S. DOCTOR, J.
DATE : 10TH APRIL 2023
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ORAL JUDGMENT:
th
December
1. The present Writ Petition impugns an order dated 9
2013 passed by Respondent No. 2, granting a Unilateral Deemed Conveyance of
land, being Survey No.292, Hissa No.1 (part), C.T.S. No.608, 608/1 to 4,
admeasuring 1246 square yards equivalent to 1041.65 square meters, situate at
Village Kurla, Chunabhatti, Mumbai Suburban District (“the said land”) in
favour of Respondent No.3.
THE BRIEF FACTS
2. Petitioner No.1 is a Public Charitable Trust registered under the
provisions of the Maharashtra Public Trust Act, 1950 and is admittedly the
owner of the said land. Petitioner Nos. 2 to 5 are the Trustees of Petitioner No. 1.
th
January 1967
3. The Petitioner No. 1 by a registered Lease dated 7
granted a monthly lease of the said land to one Asharam Pardeshi (“the Lessee”).
The said Lease permitted the Lessee to construct structures on the said land after
obtaining the Petitioners’ permission. Clause 3 of the said Lease expressly
prohibited the Lessee from subletting, mortgaging, creating any third-party
rights or parting with possession of the said land, without obtaining prior
permission of the Petitioners. The said Lease also provided that in the event of
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determination of the said Lease, the Lessee would dismantle all structures,
standing on the said land and would hand over the said land to the Petitioners
in its original condition.
4. The Lessee thereafter assigned all his rights in the said land by
executing a General Power of Attorney in favour of one Yogendra P. Doshi and
Respondent No. 8 (Rekha Upendra Doshi) (“the Promoters/Developers”). The
Promoters/Developers thereafter constructed a multi-storied building upon the
said land. The members of Respondent No. 3 are the flat purchasers all of whom
have purchased their respective flats from the Promoters/Developers under
Agreements for Sale which are stated to be governed by the provisions of The
Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) (Amendment) Act, 2005 (“MOFA”).
5. Given the breaches of the said Lease committed by the Lessee, the
nd
September 2005 terminated
Petitioners vide their Advocates’ notice dated 2
the said Lease. The Petitioners thereafter filed a Suit in the Court of Small
Causes Mumbai, under Section 41 of the Presidency Small Causes Court Act,
1882 against the Lessee and the Promoters/Developers inter alia seeking quiet,
vacant and peaceful possession of the said land. The Promoters/Developers in
their joint Written Statement the said Suit annexed inter alia (i) a letter dated
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th
April 1993 addressed by the erstwhile manager of Petitioner No. 1 to the
27
Promoter/Developer granting a no objection certificate (NOC) for developing
the said land and (ii) the impugned order.
6. It was pursuant to this that the Petitioners made an application
under the provisions of the Right to Information Act, 2005 and obtained copies
of the papers and proceedings in the Application for Deemed Conveyance filed
by Respondent No.3. It was then that the Petitioners became aware for the first
time that the said land had been conveyed in favour of Respondent No.3
pursuant to an Application for Deemed Conveyance to which neither were the
Petitioners made a party nor served with a notice of.
7. It was thus that the present Writ Petition came to be filed.
Respondent No.3 filed an Affidavit in Reply opposing the Writ Petition and
essentially contending that only the Promoter as defined under Section 2 (c) of
the MOFA is to be joined as a Party to an Application for Deemed Conveyance
and that the landowner is neither a necessary party nor is required to be heard
when deciding an Application for Deemed Conveyance. Given the issue that fell
th
for consideration in the present Writ Petition, this Court by an order dated 17
March 2023 appointed Mr. Mayur Khandeparkar as Amicus Curiae to assist
the Court in determining the issues.
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SUBMISSIONS OF MR. TRIVEDI ON BEHALF OF THE PETITIONERS
8. Mr. Trivedi at the outset pointed out that there was no dispute that
Petitioner No.1 was the owner of the said land. He placed reliance upon the
judgment of this Court in the case of Tushar Jivram Chauhan and Anr. Vs. The
1
State of Maharashtra & Ors. to submit that the scheme of the MOFA
contemplated that the Authority concerned was required to (a) consider the
documents on record and (b) give a fair and equal opportunity of hearing to all
concerned including owner, promoter, builder, and purchaser before passing
an order of Deemed Conveyance. He submitted that, despite this, admittedly, the
Petitioners though being owners of the said land, were neither made a party to
the Application for Deemed Conveyance nor had the Petitioners been given
notice of the hearing of the said Application. He submitted that therefore
Respondent No. 3 had been divested of its title to its land without so much
hearing the Petitioners. Learned Counsel then submitted that Respondent No. 3
had willfully and deliberately not joined the Petitioners as a party to the
Application for Deemed Conveyance in order to surreptitiously obtain a
Deemed Conveyance in respect of the said land knowing fully well that
Respondent No.3 was not entitled to such an order in law.
1
2015(4) ALL MR 223
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9. Mr. Maneesh Trivedi then invited my attention to Form VII being
the requisite format in which an Application for Unilateral Deemed
Conveyance was to be filed and pointed out therefrom that the Form itself
specifically contemplated that the Respondent to an Application for Deemed
Conveyance were “Promoter/s Opponent/s”. Basis this, he submitted that Form
VII itself provided that in certain cases a party other than the Promoter would
require to be joined and heard in a Application for Deemed Conveyance. He
submitted that in the facts of the present case given that Respondent No.3 had
sought a Conveyance of the land of which Petitioner No.1 was the owner, it was
incumbent upon Respondent No.3 to have joined the Petitioners as a party to
the said Application. He additionally submitted that it was equally the duty of
Respondent No.2 to have ensured that the Petitioners were parties to the said
Application and had been duly served.
10. Learned Counsel then without prejudice to the above, submitted
that there was no dispute that Petitioner No.1 was a Public Charitable Trust and
that any alienation of the said land would necessarily require prior approval of
the Charity Commissioner under Section 36 of the Maharashtra Public Trusts
Act, 1950. He submitted that in the present case, it was not in dispute that no
such prior approval of the Charity Commissioner had even been applied for,
much less obtained. He therefore submitted that the question of alienation of
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the said land in favour of anyone did not arise, and consequently, the grant of a
Deemed Conveyance of the said land also did not arise absent such permission.
11. Mr. Trivedi then took pains to point out that the Developer/
Promoter who was a party to the Application for Deemed Conveyance had in
fact objected to the grant of the order of Deemed Conveyance. He pointed out
that there was no Conveyance granted by the Petitioners in favour of the
Developer/Promoter and consequently the question of any Deemed Conveyance
being granted in favour of Respondent No.3 based on the title of the Promoter
could never arise.
12. For all of the aforesaid reasons, Mr. Trivedi submitted that the
impugned order was bad in law and that Respondent No. 2 had acted in haste
and with complete non-application of mind and/or then in complete dereliction
of his duty in passing the impugned order.
SUBMISSIONS OF MR. PATIL ON BEHALF OF RESPONDENT NO.3
13. Mr. Patil learned Counsel appearing on behalf of Respondent No.3
at the outset submitted that the very object for which MOFA had been enacted
was to safeguard the interest of innocent flat purchasers from the malpractices
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and sundry abuses by Promoters and Developers of property. He submitted that
in the instant case the grievance of the Petitioners was clearly with the
Promoters/Developers and the Lessee of the said land and not Respondent No.3.
14. He then without prejudice to the aforesaid submitted that only the
Promoter was required to be heard in an Application for Deemed Conveyance.
In support of his contention, he invited my attention to the definition of
“Promoter” under MOFA and pointed out that Sub Section (4) of Section 11
contemplated that before passing an order of Deemed Conveyance, a reasonable
opportunity of being heard was required to be given to the Promoter only and
no one else. He submitted that in the instant case, Respondent Nos.8 and 9,
being the Promoters/Developers, were admittedly heard by Respondent No. 2
before the impugned order was passed. He submitted that neither Section 11
read with Section 2(c) of MOFA, nor the Rules framed thereunder required
and/or stipulated issuance of a notice to any person or entity other than a
Promoter. He therefore submitted that the impugned order had been passed in
full compliance with the provisions of Section 11 of MOFA.
15. He then, without prejudice to the aforesaid contention submitted
that in the present case, a public notice had infact been issued and published in
the newspapers. He therefore submitted that the Petitioners were deemed to
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have notice of the Application for Deemed Conveyance. He submitted that the
Petitioners could not therefore be heard to say that no notice of the hearing of
the Deemed Conveyance Application had been given. Learned Counsel
submitted that the impugned order had been passed in full compliance with the
provisions of Section 11 of the MOFA. He submitted that the Petitioners had not
challenged the provisions of Section 11 of the MOFA which in terms provided
only for a Promoter to be given a reasonable opportunity of hearing in an
Application for Deemed Conveyance.
16. Mr. Patil then, without prejudice, submitted that the Writ Petition
suffered from gross delay and laches. He pointed out that the notice of
termination in respect of the said Lease was issued in the year 2005 and hence
the Petitioners were aware that the construction was being carried out on the
said land since the year 2005. He submitted that despite this the Petitioners did
not take any steps to stop the said construction. He submitted that though the
th
August 2016, the
Petitioners had become aware of the impugned order on 18
th
December 2017 i.e.,
Petitioners did not file the present Writ Petition until 19
after a delay of over one year and four months. He submitted that there was
absolutely no explanation for the delay of one year and four months in filing of
the present Writ Petition. He placed reliance upon a judgment of this Court in
the case of Nalini Thakkar and Others Vs. Mulund Ambe Mahal Co-op. Hsg.
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2
Soc. Ltd. and Others to submit that a party who claims to be the owner of a
property and who has slept over its rights for several years, cannot be permitted
to assert their dead rights by challenging the Unilateral Deemed Conveyance.
He pointed out that this judgment had been confirmed by the Hon’ble Supreme
Court.
17. Learned Counsel then submitted that the Petitioners’ grievances
were of a civil nature and were qua the Lessee and the Promoter/Developer. He
pointed out that the Petitioners had themselves averred in the Writ Petition that
th
January 1967,
the Petitioners had under a registered Lease Deed dated 7
granted the Lessee, a Lease in respect of the said land with the permission to
th
April 1993,
erect structures thereon. He submitted that by the letter dated 27
the Petitioners had granted an NOC to the Lessee for developing the said land
and that the MCGM had duly approved the said plans. He submitted that the
contention of the Petitioners that the said letter was fraudulent, unauthorized
and that the Petitioners’ manager did not have the authority to issue the said
letter, were not issues which could be gone into by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India. He submitted that
these issues were all civil disputes which would require to be determined by the
appropriate Civil Court. Learned Counsel then submitted that it was well settled
2
2021 SCC OnLine Bom 6590
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that the Competent Authority in exercising its jurisdiction under Section 11 of
the MOFA does not decide questions of title. He submitted that all the questions
of title can only be decided by the Competent Civil Court. In the instant case, he
submitted that the Petitioners were infact asserting title to the said land and
thus the same could only be adjudicated upon in an appropriate civil
proceeding. In support of his contention, he placed reliance upon the following
judgments: -
(i) Angeline Randolph Pereira Vs. Suyog Industrial Estate
3
Premises Co-operative Society Ltd.
(ii) Shri Vishnu Krishna Dhadphale (deceased) through Shri
Hemant Vishnu Dhadphale Vs. Competent Authority &
4
District & Ors.
18. Learned Counsel then submitted that if the impugned order was
set aside, grave prejudice would be caused to the members of the Respondent-
Society, since several of them had taken loans from the banks and financial
institutions for purchase of their respective flats. He submitted that it was
common knowledge that banks and financial institutions grant loans/financial
assistance only after ascertaining the title of the property. He submitted that in
the instant case, the respective banks/financial institutions had granted
loans/financial assistance to the flat purchases after duly ascertaining the title of
3
2018 SCC OnLine Bom 687 : (2018) 3 AIR Bom R 825
4
2017 SCC OnLine Bom 4834
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the said land and they did not find anything on record to indicate a claim
adverse to that of the Petitioners in respect of the said land. He made this
submission without prejudice to the contention that the Petitioners were not
required to be heard under Section 11 of the MOFA. For all these reasons, he
submitted that the present Writ Petition be dismissed with costs.
SUBMISSIONS OF MR. KHANDEPARKAR, AMICUS CURIAE
19. Mr. Khandeparkar, learned Amicus Curiae at the outset submitted
that it was only too well settled that in an Application for Unilateral Deemed
Conveyance, what can be conveyed is only the right, title and interest of the
Promoter and nothing more. In support of his contention, he placed reliance
upon the judgment of this Court in the case of Surendra Chunilal Gupta Vs.
Hemresha Co-operative Housing Society Limited and Ors. while referring to the
judgment of Mazda Constructions 2013 (2) ALL MR 278, as follows: -
“...that what is to be conveyed under a deemed conveyance is an
unilateral act which enables the flat purchasers to acquire the
promoter’s right, title and interest in the land and the building.
Therefore it cannot be said that an unilateral deemed conveyance
conveys something more than what belongs to the promoter...”
Learned Amicus Curiae submitted that in the facts of the present
case it might not be necessary for this Court to decide the larger issue as to
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whether Petitioner No.1 as the landowner would be required to be made a party
and/or given notice of the Application for Deemed Conveyance, since the
impugned order granted to Respondent No. 3 title to the property, which the
Promoters themselves did not have. In support of his contention, he pointed out
that it was an admitted fact that (a) the Petitioners had granted only a Lease of
the said land to the said Lessee and (b) the Lessee had assigned all its rights to
the Promoters/Developers. He, therefore, submitted that at the very highest,
Respondent No. 3 could only be granted a Lease of the said land and nothing
more since the Promoter/Developer did not themselves have a Conveyance of
the said land. He submitted that on this ground alone, the impugned order was
vulnerable and liable to be set aside.
20. Learned Amicus Curiae then in answer as to whether the owner
of land in respect of which a lease had been granted would have to be joined as
a Party to an Application for Deemed Conveyance, submitted that the same
would depend on the facts of each individual case. He submitted that in cases
where a Lessor had permitted the construction and/or sale of the building in
question, then the provisions of Section 11 of MOFA would apply. He submitted
that in such cases the society/ flat purchasers would have the right to invoke the
provisions of MOFA and seek a Unilateral Deemed Conveyance against the
Lessor. He submitted that this was primarily because Section 16 of MOFA
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expressly provided that the provisions of MOFA were in addition to the
provisions of the Transfer of Property Act, 1882. He submitted that when
deciding whether a Lessor could be regarded as a Promoter, two possible
scenarios could arise (i) where the Lessor has carried out or caused the
construction in question to be carried out and (ii) where only the Lessee has
carried out the construction in question independent of the Lessor. He
submitted that in the first scenario it would be necessary for the society/flat
purchasers to join the Lessor as a party to the Application for Deemed
Conveyance and for the Lessor to be given a reasonable opportunity of hearing
before any order is passed. In the second scenario where only, the Lessee had
carried out the construction, the society/flat purchasers were not required to
join the Lessor as a party to an Application for Deemed Conveyance. He
submitted in the second scenario, the the society/flat purchasers would be
entitled to a Unilateral Deemed Conveyance pursuant to which the society/flat
purchasers would step into the shoes of the Lessee. He submitted that such
transfer although under the provisions of MOFA would be subservient to the
Lease Deed. He submitted that in such cases, the rights of the Lessor to proceed
against the Lessee and/or the society under the relevant provisions of law inter
alia the Presidency Small Causes Court Act and/or the Transfer of Property Act
would remain unaffected.
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21. Learned Amicus Curiae then submitted that the fact that Petitioner
No.1 was a Public Charitable Trust, was also another important aspect to be
considered. He submitted that any alienation of land by the Petitioners could
never have been done without the prior sanction of the Charity Commissioner
under Section 36 of Maharashtra Public Trusts Act, 1950. He submitted that in
the present case, it was common ground that such sanction had never been
granted. He submitted that this aspect also ought to have been considered by
Respondent No. 2 before passing the impugned order since by virtue of the
impugned order, a Public Charitable Trust was divested of its right, title and
interest in its own land.
22. Learned Amicus Curiae then submitted that Respondent No. 2,
when discharging its functions and duties in deciding an Application for
Deemed Conveyance, did not have the power to rewrite a contract. He
submitted that Respondent No.2 was only required to complete the process of
Unilateral Deemed Conveyance under Section 11 in accordance with Section 4
of the MOFA of Agreement. He submitted that Respondent No. 2 when deciding
an Application for Unilateral Deemed Conveyance was required to ascertain
viz.
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a. Whether the Party/Entity from whom a Unilateral Deemed
Conveyance was sought was the Promoter as contemplated
under Section 2(c) of MOFA.
b. Whether the documents relied upon and annexed to the
Application for Deemed Conveyance conveyed title to the
Promoter and support the prayer for Deemed Conveyance of
the Promoters title.
c. Whether there had been any default in execution of Deemed
Conveyance on the part of the Promoter.
d Whether the area in respect of which Deemed Conveyance
was sought for was in terms of the Section 4 Agreement or
nd
June 2018.
the Government Resolution of 22
REASONS AND FINDINGS
23. I have heard learned Counsel for the Parties as also learned
Amicus Curiae and considered the case laws cited and have no hesitation in
holding that the impugned order deserves to be set aside for the following
reasons, viz.
A. The position in law is well settled i.e., the society/flat
purchasers in an Application for Unilateral Deemed
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Conveyance are only entitled to whatever right, title and
interest the Promoter has in the said land. In the facts of the
present case it is not in dispute that the Petitioners have
only granted a Lease in respect of the said land to the
Lessee. The Lessee in turn has assigned all it’s right, title
and interest in the said land to the Promoters/Developers.
Thus, even assuming that such assignment was valid, all
that Respondent No.3 could have sought for in the
Application for Deemed Conveyance was for a Lease of the
said land and not a Conveyance. Respondent No. 3
however, whether consciously or then ill-advisedly in the
Application for Deemed Conveyance sought a Conveyance
of the said land in its favour and not a Lease. The
submission of learned Amicus Curiae that the impugned
order is vulnerable on this ground alone is therefore one
which is not without merit, and I am in full Agreement
with the same. The impugned order in my view deserves to
be set aside on this ground alone since the effect of
impugned order is firstly, to convey to Respondent No. 3
right, title and interest in the said land which the Lessee
and/or the Promoter/Developer themselves did not have
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and secondly to divest the Petitioners of divested its right,
title and interest in the said land, without so much as
affording the Petitioners an opportunity of a hearing.
B. Additionally, I find that Respondent No. 2 has acted with
complete non application of mind or then in willful
dereliction of its duty. It is well settled that the jurisdiction
of the competent authority in deciding an Application for
Deemed Conveyance is summary and not ministerial. This
necessarily postulates that the competent authority is inter
alia required to apply its mind and (i) verify the eligibility
of the Applicant (ii) examine the documents annexed to the
Application (iii) ascertain whether the documents annexed
to such Application establish the title of the Promoters (iv)
whether the prayer for Deemed Conveyance is in
consonance with the documents/agreements annexed to
the said Application. In the present case it is indeed
befuddling as to how Respondent No. 2 has granted a
Unilateral Deemed Conveyance when ex facie the
Promoters themselves were only at the highest, Lessees of
the said land (assuming the assignment in their favour by
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the Lessee was valid). It is for this reason I find that
Respondent No. 2 has acted with complete non application
of mind which has resulted in manifest injustice to the
Petitioners who have been deprived of their title to the said
land without even being made a party to the said
Application and without being heard.
C. The contention of learned Counsel for Respondent No. 3
that no one other than the Promoter is to be joined as a
party or heard in an Application for Deemed Conveyance is
entirely untenable. This Court in the case of Tushar Jivram
Chauhan and Anr. (supra) expressly set out that the scheme
of MOFA contemplates that the Competent Authority is
required to give a fair and equal opportunity of hearing to
all concerned, including owner, promoter, builder, and the
purchaser of the said property in question. Form VII also
sets out that the counter party to an Application for
Deemed Conveyance is “Promoter/s Opponent/s” thus
making it clear that the Promoter is not the only counter
party in an Application for Deemed Conveyance. An
Applicant who seeks a Deemed Conveyance would
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therefore necessarily have to annex all the relevant
documents which establish the title of the Promoter and
where necessary give notice to such parties of the said
Application for Deemed Conveyance as also join any
person/entity whose right, title and interest in the said land
sought to be conveyed is likely to be affected by an order of
Unilateral Deemed Conveyance. In the present case, it was
more so incumbent upon Respondent No. 3 to have made
the Petitioners a party to the Application given the
submission of Learned Counsel for Respondent No. 3 that
the Petitioners’ conduct was such that the Petitioners
caused construction on the said land and would therefore
fall under the definition of Promoter under Section 2 (c) of
MOFA.
D. The contention of learned Counsel for Respondent No. 2
that the Petitioners’ claim is essentially a civil claim in
which the Petitioners are asserting title to the said land is
also entirely without merit. While there is no dispute with
regards to the proposition of law laid down in the
judgments relied upon by learned Counsel for Respondent
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No. 2, I find that the same is entirely inapplicable to the
facts of the present case since the Petitioners’ challenge is to
the legality of the impugned order which is passed in
complete disregard of the relevant provisions of MOFA. The
challenge to the impugned order is on the ground that the
same has been issued with total non-application of mind,
in violation of the principles of natural justice and relevant
provisions of MOFA. Similarly, the contention of
Respondent No. 2 that the Writ Petition is barred by
limitation is also equally without basis. In the present case,
the delay claimed by Respondent No. 2 in its Affidavit in
Reply is of about one year and four months. While this
itself is by no stretch of imagination delay of a nature so as
to disentitle the Petitioners to the relief sought for. It is
equally well settled law that there is no rule of law, which
says Courts under Article 226 of the Constitution of India
cannot enquire into claims despite the passage of time
where the illegality is patent. The test is to see whether the
illegality complained of is manifest and whether the same
can be sustained solely on the ground of laches. The test is
not the physical running of time but the fact that justifiable
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reasons exist for warranting a Court’s action in cases
where injustice has been done or justice has been denied.
All that the Court has to see is whether the delay and laches
on the part of the Petitioners is such as to disentitle the
Petitioners of the relief claimed. It is now well settled that
where a case has been made out to merit interference
under Article 226 relief would not be denied solely on the
ground of delay. The judgement in the case Nalini Thakkar
and Others (supra) upon which reliance was placed by
Respondent No. 3 is also of no assistance to Respondent No.
3 and is entirely inapplicable to the facts of the present
case. The Petitioner in that case unlike in the present case,
had in the year 1978 entered into an Agreement for Sale
with the Developer. It was in this context that this Court
inter alia observed as follows, viz.
“15. In so far as the other contention as urged on behalf of the
petitioners that there is likelihood that the rights of the
petitioners would be affected by the said deemed conveyance
also cannot be accepted. It appears to be quite clear that the
petitioners at no point of time had asserted in any proceedings
or by any other method as known to law, any of their rights
either under the original agreement dated 14 February, 1978
or the subsequent MOU entered with the developer. It is only
when a deemed conveyance was sought to be obtained by the
society by making an application before the competent
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authority, the developer remaining a mute spectator, the
petitioners appears to have grabbed an opportunity to assert,
and probably their dead rights which they could not have at all
asserted against the developer, so as to have a back door entry.
The petitioners on such plea cannot in any manner create
hurdles in the society obtaining a deemed conveyance in
respect of the plot and which ought to have been granted by
the developer to the society. If at all the petitioners had any
interest in the said land which was subject matter of the
agreement dated 14 February, 1978 which the petitioners had
failed to assert, and such rights which today are possibly barred
by limitation, could not have been asserted in this indirect
manner in obstructing the society from obtaining a deemed
conveyance. In my opinion, the entire endeavour of the
petitioners is an indirect and a systematic attempt by which
they intend to assert dead rights under the Agreement to Sale
dated 14 February, 1978 which, as noted above, completely
stood extinguished and certainly qua the society. Such back
door entry to assert such unasserted rights is certainly not
permissible. In my opinion, the petitioners’ case is mischievous
so as to cause an unwarranted harassment to the society, when
the building of the society stands demolished having outlived
its life. As noted above the developer has remained to be a mute
spectator. I would not be surprised that having taken such
position, he has put up the petitioners to oppose a deemed
conveyance for extraneous considerations.”
Thus clearly the said judgment is entirely inapplicable to the
facts of the present case.
24. In view of the aforesaid findings, the present Writ Petition is
allowed.
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th
December 2013 is set aside. Needless to state,
25. The order dated 9
Respondent No. 3 is at liberty to file a fresh Application for Deemed
Conveyance should Respondent No. 3 so choose to.
26. Before parting with this judgment, I must record my appreciation
for the most able assistance rendered by the Amicus Curiae in presenting the
case and the law without, at any stage, adopting an adversarial stance.
(ARIF S. DOCTOR, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.555 OF 2018
1. A. H. Wadia Trust
A public Charitable Trust registered under
The Maharashtra Public Trust Act, 1950
Under Registration No.PTR No.Bom E-470,
Having its office at :
70, Temple Bar Building, Dr. V. B. Gandhi Marg,
Mumbai 400023.
2. Jehangir Adi Wadia
3. Muncherji Nusserwanji Muncherji Cama
4. Adil Jehangir Wadia
5. Sheroo Jehangir Wadia
Plaintiff Nos.2 to 5, being the present Trustees
of the Plaintiff No.1 A.H. Wadia Trust, having their
office at 70, Temple Bar Building, Dr. V. B. Gandhi Marg,
Mumbai 400 023. … Petitioners
Versus
1. State of Maharashtra
P.W.D. Building, High Court Compound,
Mumbai 400 023.
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2. District Deputy Registrar of Co-operative
Societies (II),
Eastern Suburban, Mumbai, in his capacity
as Competent Authority under Section 5A of
nd
Floor, Konkan Bhavan,
MOFA, having his office at 2
Ward No.201, Navi Mumbai 614.
3. Jai Anand Co-operative Housing Society Limited,
a Co-operative Housing Society, registered under
the provisions of the Maharashtra Co-operative
Societies Act, 1960, having its registered office at
CTS No.608, 608 (1 to 4), Jawakar Lane, Chunabhatti (E),
Mumbai 400022.
4. Subedar Asharam Pardeshi,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
5. Jaiprakash Asharam Rajak,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
6. Damayanti Asharam Rajak,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
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7. Sadhana Jethulal Kanojia,
Residing at Room No.11, Asharam Ramsumer Chawl,
Chawl No.173/A, Azad Galli, Sion Chunabhatti,
Mumbai 400022.
8. Rekha Upendra Doshi,
th
Floor, A Wing, Bhagnagri Society,
406-407, 4
NSM Marg, Near Chunabhatti Station, Sion,
Chunabhatti West, Mumbai 400022.
9. Payal Jignesh Shah,
st
Floor, A Wing, Plot No.208,
Flat No.15, 1
Meena Sadan, Sion East, Mumbai 400022.
10. Nirali Kunal Gathani,
Flat No.19-20, Ground Floor, B Wing,
Bhagnagri Society, NSM Marg,
Near Chunabhatti Station, Sion,
Chunabhatti West, Mumbai 400022. … Respondents
-----
Mr. Maneesh Trivedi a/w Tinaz Kapadia i/by LR & Associates for the Petitioners.
Mr. Manish Upadhye, AGP for Respondent Nos.1 and 2.
Mr. Pramod N. Patil a/w Mr. Ajit Hon a/w Mr. Shamsundar Solanke for
Respondent No.3.
Mr. Mayur Khandeparkar, Amicus Curiae a/w Ms. Anisa present.
-----
CORAM : ARIF S. DOCTOR, J.
DATE : 10TH APRIL 2023
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ORAL JUDGMENT:
th
December
1. The present Writ Petition impugns an order dated 9
2013 passed by Respondent No. 2, granting a Unilateral Deemed Conveyance of
land, being Survey No.292, Hissa No.1 (part), C.T.S. No.608, 608/1 to 4,
admeasuring 1246 square yards equivalent to 1041.65 square meters, situate at
Village Kurla, Chunabhatti, Mumbai Suburban District (“the said land”) in
favour of Respondent No.3.
THE BRIEF FACTS
2. Petitioner No.1 is a Public Charitable Trust registered under the
provisions of the Maharashtra Public Trust Act, 1950 and is admittedly the
owner of the said land. Petitioner Nos. 2 to 5 are the Trustees of Petitioner No. 1.
th
January 1967
3. The Petitioner No. 1 by a registered Lease dated 7
granted a monthly lease of the said land to one Asharam Pardeshi (“the Lessee”).
The said Lease permitted the Lessee to construct structures on the said land after
obtaining the Petitioners’ permission. Clause 3 of the said Lease expressly
prohibited the Lessee from subletting, mortgaging, creating any third-party
rights or parting with possession of the said land, without obtaining prior
permission of the Petitioners. The said Lease also provided that in the event of
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determination of the said Lease, the Lessee would dismantle all structures,
standing on the said land and would hand over the said land to the Petitioners
in its original condition.
4. The Lessee thereafter assigned all his rights in the said land by
executing a General Power of Attorney in favour of one Yogendra P. Doshi and
Respondent No. 8 (Rekha Upendra Doshi) (“the Promoters/Developers”). The
Promoters/Developers thereafter constructed a multi-storied building upon the
said land. The members of Respondent No. 3 are the flat purchasers all of whom
have purchased their respective flats from the Promoters/Developers under
Agreements for Sale which are stated to be governed by the provisions of The
Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) (Amendment) Act, 2005 (“MOFA”).
5. Given the breaches of the said Lease committed by the Lessee, the
nd
September 2005 terminated
Petitioners vide their Advocates’ notice dated 2
the said Lease. The Petitioners thereafter filed a Suit in the Court of Small
Causes Mumbai, under Section 41 of the Presidency Small Causes Court Act,
1882 against the Lessee and the Promoters/Developers inter alia seeking quiet,
vacant and peaceful possession of the said land. The Promoters/Developers in
their joint Written Statement the said Suit annexed inter alia (i) a letter dated
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th
April 1993 addressed by the erstwhile manager of Petitioner No. 1 to the
27
Promoter/Developer granting a no objection certificate (NOC) for developing
the said land and (ii) the impugned order.
6. It was pursuant to this that the Petitioners made an application
under the provisions of the Right to Information Act, 2005 and obtained copies
of the papers and proceedings in the Application for Deemed Conveyance filed
by Respondent No.3. It was then that the Petitioners became aware for the first
time that the said land had been conveyed in favour of Respondent No.3
pursuant to an Application for Deemed Conveyance to which neither were the
Petitioners made a party nor served with a notice of.
7. It was thus that the present Writ Petition came to be filed.
Respondent No.3 filed an Affidavit in Reply opposing the Writ Petition and
essentially contending that only the Promoter as defined under Section 2 (c) of
the MOFA is to be joined as a Party to an Application for Deemed Conveyance
and that the landowner is neither a necessary party nor is required to be heard
when deciding an Application for Deemed Conveyance. Given the issue that fell
th
for consideration in the present Writ Petition, this Court by an order dated 17
March 2023 appointed Mr. Mayur Khandeparkar as Amicus Curiae to assist
the Court in determining the issues.
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SUBMISSIONS OF MR. TRIVEDI ON BEHALF OF THE PETITIONERS
8. Mr. Trivedi at the outset pointed out that there was no dispute that
Petitioner No.1 was the owner of the said land. He placed reliance upon the
judgment of this Court in the case of Tushar Jivram Chauhan and Anr. Vs. The
1
State of Maharashtra & Ors. to submit that the scheme of the MOFA
contemplated that the Authority concerned was required to (a) consider the
documents on record and (b) give a fair and equal opportunity of hearing to all
concerned including owner, promoter, builder, and purchaser before passing
an order of Deemed Conveyance. He submitted that, despite this, admittedly, the
Petitioners though being owners of the said land, were neither made a party to
the Application for Deemed Conveyance nor had the Petitioners been given
notice of the hearing of the said Application. He submitted that therefore
Respondent No. 3 had been divested of its title to its land without so much
hearing the Petitioners. Learned Counsel then submitted that Respondent No. 3
had willfully and deliberately not joined the Petitioners as a party to the
Application for Deemed Conveyance in order to surreptitiously obtain a
Deemed Conveyance in respect of the said land knowing fully well that
Respondent No.3 was not entitled to such an order in law.
1
2015(4) ALL MR 223
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9. Mr. Maneesh Trivedi then invited my attention to Form VII being
the requisite format in which an Application for Unilateral Deemed
Conveyance was to be filed and pointed out therefrom that the Form itself
specifically contemplated that the Respondent to an Application for Deemed
Conveyance were “Promoter/s Opponent/s”. Basis this, he submitted that Form
VII itself provided that in certain cases a party other than the Promoter would
require to be joined and heard in a Application for Deemed Conveyance. He
submitted that in the facts of the present case given that Respondent No.3 had
sought a Conveyance of the land of which Petitioner No.1 was the owner, it was
incumbent upon Respondent No.3 to have joined the Petitioners as a party to
the said Application. He additionally submitted that it was equally the duty of
Respondent No.2 to have ensured that the Petitioners were parties to the said
Application and had been duly served.
10. Learned Counsel then without prejudice to the above, submitted
that there was no dispute that Petitioner No.1 was a Public Charitable Trust and
that any alienation of the said land would necessarily require prior approval of
the Charity Commissioner under Section 36 of the Maharashtra Public Trusts
Act, 1950. He submitted that in the present case, it was not in dispute that no
such prior approval of the Charity Commissioner had even been applied for,
much less obtained. He therefore submitted that the question of alienation of
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the said land in favour of anyone did not arise, and consequently, the grant of a
Deemed Conveyance of the said land also did not arise absent such permission.
11. Mr. Trivedi then took pains to point out that the Developer/
Promoter who was a party to the Application for Deemed Conveyance had in
fact objected to the grant of the order of Deemed Conveyance. He pointed out
that there was no Conveyance granted by the Petitioners in favour of the
Developer/Promoter and consequently the question of any Deemed Conveyance
being granted in favour of Respondent No.3 based on the title of the Promoter
could never arise.
12. For all of the aforesaid reasons, Mr. Trivedi submitted that the
impugned order was bad in law and that Respondent No. 2 had acted in haste
and with complete non-application of mind and/or then in complete dereliction
of his duty in passing the impugned order.
SUBMISSIONS OF MR. PATIL ON BEHALF OF RESPONDENT NO.3
13. Mr. Patil learned Counsel appearing on behalf of Respondent No.3
at the outset submitted that the very object for which MOFA had been enacted
was to safeguard the interest of innocent flat purchasers from the malpractices
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and sundry abuses by Promoters and Developers of property. He submitted that
in the instant case the grievance of the Petitioners was clearly with the
Promoters/Developers and the Lessee of the said land and not Respondent No.3.
14. He then without prejudice to the aforesaid submitted that only the
Promoter was required to be heard in an Application for Deemed Conveyance.
In support of his contention, he invited my attention to the definition of
“Promoter” under MOFA and pointed out that Sub Section (4) of Section 11
contemplated that before passing an order of Deemed Conveyance, a reasonable
opportunity of being heard was required to be given to the Promoter only and
no one else. He submitted that in the instant case, Respondent Nos.8 and 9,
being the Promoters/Developers, were admittedly heard by Respondent No. 2
before the impugned order was passed. He submitted that neither Section 11
read with Section 2(c) of MOFA, nor the Rules framed thereunder required
and/or stipulated issuance of a notice to any person or entity other than a
Promoter. He therefore submitted that the impugned order had been passed in
full compliance with the provisions of Section 11 of MOFA.
15. He then, without prejudice to the aforesaid contention submitted
that in the present case, a public notice had infact been issued and published in
the newspapers. He therefore submitted that the Petitioners were deemed to
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have notice of the Application for Deemed Conveyance. He submitted that the
Petitioners could not therefore be heard to say that no notice of the hearing of
the Deemed Conveyance Application had been given. Learned Counsel
submitted that the impugned order had been passed in full compliance with the
provisions of Section 11 of the MOFA. He submitted that the Petitioners had not
challenged the provisions of Section 11 of the MOFA which in terms provided
only for a Promoter to be given a reasonable opportunity of hearing in an
Application for Deemed Conveyance.
16. Mr. Patil then, without prejudice, submitted that the Writ Petition
suffered from gross delay and laches. He pointed out that the notice of
termination in respect of the said Lease was issued in the year 2005 and hence
the Petitioners were aware that the construction was being carried out on the
said land since the year 2005. He submitted that despite this the Petitioners did
not take any steps to stop the said construction. He submitted that though the
th
August 2016, the
Petitioners had become aware of the impugned order on 18
th
December 2017 i.e.,
Petitioners did not file the present Writ Petition until 19
after a delay of over one year and four months. He submitted that there was
absolutely no explanation for the delay of one year and four months in filing of
the present Writ Petition. He placed reliance upon a judgment of this Court in
the case of Nalini Thakkar and Others Vs. Mulund Ambe Mahal Co-op. Hsg.
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2
Soc. Ltd. and Others to submit that a party who claims to be the owner of a
property and who has slept over its rights for several years, cannot be permitted
to assert their dead rights by challenging the Unilateral Deemed Conveyance.
He pointed out that this judgment had been confirmed by the Hon’ble Supreme
Court.
17. Learned Counsel then submitted that the Petitioners’ grievances
were of a civil nature and were qua the Lessee and the Promoter/Developer. He
pointed out that the Petitioners had themselves averred in the Writ Petition that
th
January 1967,
the Petitioners had under a registered Lease Deed dated 7
granted the Lessee, a Lease in respect of the said land with the permission to
th
April 1993,
erect structures thereon. He submitted that by the letter dated 27
the Petitioners had granted an NOC to the Lessee for developing the said land
and that the MCGM had duly approved the said plans. He submitted that the
contention of the Petitioners that the said letter was fraudulent, unauthorized
and that the Petitioners’ manager did not have the authority to issue the said
letter, were not issues which could be gone into by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India. He submitted that
these issues were all civil disputes which would require to be determined by the
appropriate Civil Court. Learned Counsel then submitted that it was well settled
2
2021 SCC OnLine Bom 6590
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that the Competent Authority in exercising its jurisdiction under Section 11 of
the MOFA does not decide questions of title. He submitted that all the questions
of title can only be decided by the Competent Civil Court. In the instant case, he
submitted that the Petitioners were infact asserting title to the said land and
thus the same could only be adjudicated upon in an appropriate civil
proceeding. In support of his contention, he placed reliance upon the following
judgments: -
(i) Angeline Randolph Pereira Vs. Suyog Industrial Estate
3
Premises Co-operative Society Ltd.
(ii) Shri Vishnu Krishna Dhadphale (deceased) through Shri
Hemant Vishnu Dhadphale Vs. Competent Authority &
4
District & Ors.
18. Learned Counsel then submitted that if the impugned order was
set aside, grave prejudice would be caused to the members of the Respondent-
Society, since several of them had taken loans from the banks and financial
institutions for purchase of their respective flats. He submitted that it was
common knowledge that banks and financial institutions grant loans/financial
assistance only after ascertaining the title of the property. He submitted that in
the instant case, the respective banks/financial institutions had granted
loans/financial assistance to the flat purchases after duly ascertaining the title of
3
2018 SCC OnLine Bom 687 : (2018) 3 AIR Bom R 825
4
2017 SCC OnLine Bom 4834
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the said land and they did not find anything on record to indicate a claim
adverse to that of the Petitioners in respect of the said land. He made this
submission without prejudice to the contention that the Petitioners were not
required to be heard under Section 11 of the MOFA. For all these reasons, he
submitted that the present Writ Petition be dismissed with costs.
SUBMISSIONS OF MR. KHANDEPARKAR, AMICUS CURIAE
19. Mr. Khandeparkar, learned Amicus Curiae at the outset submitted
that it was only too well settled that in an Application for Unilateral Deemed
Conveyance, what can be conveyed is only the right, title and interest of the
Promoter and nothing more. In support of his contention, he placed reliance
upon the judgment of this Court in the case of Surendra Chunilal Gupta Vs.
Hemresha Co-operative Housing Society Limited and Ors. while referring to the
judgment of Mazda Constructions 2013 (2) ALL MR 278, as follows: -
“...that what is to be conveyed under a deemed conveyance is an
unilateral act which enables the flat purchasers to acquire the
promoter’s right, title and interest in the land and the building.
Therefore it cannot be said that an unilateral deemed conveyance
conveys something more than what belongs to the promoter...”
Learned Amicus Curiae submitted that in the facts of the present
case it might not be necessary for this Court to decide the larger issue as to
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whether Petitioner No.1 as the landowner would be required to be made a party
and/or given notice of the Application for Deemed Conveyance, since the
impugned order granted to Respondent No. 3 title to the property, which the
Promoters themselves did not have. In support of his contention, he pointed out
that it was an admitted fact that (a) the Petitioners had granted only a Lease of
the said land to the said Lessee and (b) the Lessee had assigned all its rights to
the Promoters/Developers. He, therefore, submitted that at the very highest,
Respondent No. 3 could only be granted a Lease of the said land and nothing
more since the Promoter/Developer did not themselves have a Conveyance of
the said land. He submitted that on this ground alone, the impugned order was
vulnerable and liable to be set aside.
20. Learned Amicus Curiae then in answer as to whether the owner
of land in respect of which a lease had been granted would have to be joined as
a Party to an Application for Deemed Conveyance, submitted that the same
would depend on the facts of each individual case. He submitted that in cases
where a Lessor had permitted the construction and/or sale of the building in
question, then the provisions of Section 11 of MOFA would apply. He submitted
that in such cases the society/ flat purchasers would have the right to invoke the
provisions of MOFA and seek a Unilateral Deemed Conveyance against the
Lessor. He submitted that this was primarily because Section 16 of MOFA
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expressly provided that the provisions of MOFA were in addition to the
provisions of the Transfer of Property Act, 1882. He submitted that when
deciding whether a Lessor could be regarded as a Promoter, two possible
scenarios could arise (i) where the Lessor has carried out or caused the
construction in question to be carried out and (ii) where only the Lessee has
carried out the construction in question independent of the Lessor. He
submitted that in the first scenario it would be necessary for the society/flat
purchasers to join the Lessor as a party to the Application for Deemed
Conveyance and for the Lessor to be given a reasonable opportunity of hearing
before any order is passed. In the second scenario where only, the Lessee had
carried out the construction, the society/flat purchasers were not required to
join the Lessor as a party to an Application for Deemed Conveyance. He
submitted in the second scenario, the the society/flat purchasers would be
entitled to a Unilateral Deemed Conveyance pursuant to which the society/flat
purchasers would step into the shoes of the Lessee. He submitted that such
transfer although under the provisions of MOFA would be subservient to the
Lease Deed. He submitted that in such cases, the rights of the Lessor to proceed
against the Lessee and/or the society under the relevant provisions of law inter
alia the Presidency Small Causes Court Act and/or the Transfer of Property Act
would remain unaffected.
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21. Learned Amicus Curiae then submitted that the fact that Petitioner
No.1 was a Public Charitable Trust, was also another important aspect to be
considered. He submitted that any alienation of land by the Petitioners could
never have been done without the prior sanction of the Charity Commissioner
under Section 36 of Maharashtra Public Trusts Act, 1950. He submitted that in
the present case, it was common ground that such sanction had never been
granted. He submitted that this aspect also ought to have been considered by
Respondent No. 2 before passing the impugned order since by virtue of the
impugned order, a Public Charitable Trust was divested of its right, title and
interest in its own land.
22. Learned Amicus Curiae then submitted that Respondent No. 2,
when discharging its functions and duties in deciding an Application for
Deemed Conveyance, did not have the power to rewrite a contract. He
submitted that Respondent No.2 was only required to complete the process of
Unilateral Deemed Conveyance under Section 11 in accordance with Section 4
of the MOFA of Agreement. He submitted that Respondent No. 2 when deciding
an Application for Unilateral Deemed Conveyance was required to ascertain
viz.
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a. Whether the Party/Entity from whom a Unilateral Deemed
Conveyance was sought was the Promoter as contemplated
under Section 2(c) of MOFA.
b. Whether the documents relied upon and annexed to the
Application for Deemed Conveyance conveyed title to the
Promoter and support the prayer for Deemed Conveyance of
the Promoters title.
c. Whether there had been any default in execution of Deemed
Conveyance on the part of the Promoter.
d Whether the area in respect of which Deemed Conveyance
was sought for was in terms of the Section 4 Agreement or
nd
June 2018.
the Government Resolution of 22
REASONS AND FINDINGS
23. I have heard learned Counsel for the Parties as also learned
Amicus Curiae and considered the case laws cited and have no hesitation in
holding that the impugned order deserves to be set aside for the following
reasons, viz.
A. The position in law is well settled i.e., the society/flat
purchasers in an Application for Unilateral Deemed
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Conveyance are only entitled to whatever right, title and
interest the Promoter has in the said land. In the facts of the
present case it is not in dispute that the Petitioners have
only granted a Lease in respect of the said land to the
Lessee. The Lessee in turn has assigned all it’s right, title
and interest in the said land to the Promoters/Developers.
Thus, even assuming that such assignment was valid, all
that Respondent No.3 could have sought for in the
Application for Deemed Conveyance was for a Lease of the
said land and not a Conveyance. Respondent No. 3
however, whether consciously or then ill-advisedly in the
Application for Deemed Conveyance sought a Conveyance
of the said land in its favour and not a Lease. The
submission of learned Amicus Curiae that the impugned
order is vulnerable on this ground alone is therefore one
which is not without merit, and I am in full Agreement
with the same. The impugned order in my view deserves to
be set aside on this ground alone since the effect of
impugned order is firstly, to convey to Respondent No. 3
right, title and interest in the said land which the Lessee
and/or the Promoter/Developer themselves did not have
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and secondly to divest the Petitioners of divested its right,
title and interest in the said land, without so much as
affording the Petitioners an opportunity of a hearing.
B. Additionally, I find that Respondent No. 2 has acted with
complete non application of mind or then in willful
dereliction of its duty. It is well settled that the jurisdiction
of the competent authority in deciding an Application for
Deemed Conveyance is summary and not ministerial. This
necessarily postulates that the competent authority is inter
alia required to apply its mind and (i) verify the eligibility
of the Applicant (ii) examine the documents annexed to the
Application (iii) ascertain whether the documents annexed
to such Application establish the title of the Promoters (iv)
whether the prayer for Deemed Conveyance is in
consonance with the documents/agreements annexed to
the said Application. In the present case it is indeed
befuddling as to how Respondent No. 2 has granted a
Unilateral Deemed Conveyance when ex facie the
Promoters themselves were only at the highest, Lessees of
the said land (assuming the assignment in their favour by
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the Lessee was valid). It is for this reason I find that
Respondent No. 2 has acted with complete non application
of mind which has resulted in manifest injustice to the
Petitioners who have been deprived of their title to the said
land without even being made a party to the said
Application and without being heard.
C. The contention of learned Counsel for Respondent No. 3
that no one other than the Promoter is to be joined as a
party or heard in an Application for Deemed Conveyance is
entirely untenable. This Court in the case of Tushar Jivram
Chauhan and Anr. (supra) expressly set out that the scheme
of MOFA contemplates that the Competent Authority is
required to give a fair and equal opportunity of hearing to
all concerned, including owner, promoter, builder, and the
purchaser of the said property in question. Form VII also
sets out that the counter party to an Application for
Deemed Conveyance is “Promoter/s Opponent/s” thus
making it clear that the Promoter is not the only counter
party in an Application for Deemed Conveyance. An
Applicant who seeks a Deemed Conveyance would
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therefore necessarily have to annex all the relevant
documents which establish the title of the Promoter and
where necessary give notice to such parties of the said
Application for Deemed Conveyance as also join any
person/entity whose right, title and interest in the said land
sought to be conveyed is likely to be affected by an order of
Unilateral Deemed Conveyance. In the present case, it was
more so incumbent upon Respondent No. 3 to have made
the Petitioners a party to the Application given the
submission of Learned Counsel for Respondent No. 3 that
the Petitioners’ conduct was such that the Petitioners
caused construction on the said land and would therefore
fall under the definition of Promoter under Section 2 (c) of
MOFA.
D. The contention of learned Counsel for Respondent No. 2
that the Petitioners’ claim is essentially a civil claim in
which the Petitioners are asserting title to the said land is
also entirely without merit. While there is no dispute with
regards to the proposition of law laid down in the
judgments relied upon by learned Counsel for Respondent
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No. 2, I find that the same is entirely inapplicable to the
facts of the present case since the Petitioners’ challenge is to
the legality of the impugned order which is passed in
complete disregard of the relevant provisions of MOFA. The
challenge to the impugned order is on the ground that the
same has been issued with total non-application of mind,
in violation of the principles of natural justice and relevant
provisions of MOFA. Similarly, the contention of
Respondent No. 2 that the Writ Petition is barred by
limitation is also equally without basis. In the present case,
the delay claimed by Respondent No. 2 in its Affidavit in
Reply is of about one year and four months. While this
itself is by no stretch of imagination delay of a nature so as
to disentitle the Petitioners to the relief sought for. It is
equally well settled law that there is no rule of law, which
says Courts under Article 226 of the Constitution of India
cannot enquire into claims despite the passage of time
where the illegality is patent. The test is to see whether the
illegality complained of is manifest and whether the same
can be sustained solely on the ground of laches. The test is
not the physical running of time but the fact that justifiable
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reasons exist for warranting a Court’s action in cases
where injustice has been done or justice has been denied.
All that the Court has to see is whether the delay and laches
on the part of the Petitioners is such as to disentitle the
Petitioners of the relief claimed. It is now well settled that
where a case has been made out to merit interference
under Article 226 relief would not be denied solely on the
ground of delay. The judgement in the case Nalini Thakkar
and Others (supra) upon which reliance was placed by
Respondent No. 3 is also of no assistance to Respondent No.
3 and is entirely inapplicable to the facts of the present
case. The Petitioner in that case unlike in the present case,
had in the year 1978 entered into an Agreement for Sale
with the Developer. It was in this context that this Court
inter alia observed as follows, viz.
“15. In so far as the other contention as urged on behalf of the
petitioners that there is likelihood that the rights of the
petitioners would be affected by the said deemed conveyance
also cannot be accepted. It appears to be quite clear that the
petitioners at no point of time had asserted in any proceedings
or by any other method as known to law, any of their rights
either under the original agreement dated 14 February, 1978
or the subsequent MOU entered with the developer. It is only
when a deemed conveyance was sought to be obtained by the
society by making an application before the competent
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authority, the developer remaining a mute spectator, the
petitioners appears to have grabbed an opportunity to assert,
and probably their dead rights which they could not have at all
asserted against the developer, so as to have a back door entry.
The petitioners on such plea cannot in any manner create
hurdles in the society obtaining a deemed conveyance in
respect of the plot and which ought to have been granted by
the developer to the society. If at all the petitioners had any
interest in the said land which was subject matter of the
agreement dated 14 February, 1978 which the petitioners had
failed to assert, and such rights which today are possibly barred
by limitation, could not have been asserted in this indirect
manner in obstructing the society from obtaining a deemed
conveyance. In my opinion, the entire endeavour of the
petitioners is an indirect and a systematic attempt by which
they intend to assert dead rights under the Agreement to Sale
dated 14 February, 1978 which, as noted above, completely
stood extinguished and certainly qua the society. Such back
door entry to assert such unasserted rights is certainly not
permissible. In my opinion, the petitioners’ case is mischievous
so as to cause an unwarranted harassment to the society, when
the building of the society stands demolished having outlived
its life. As noted above the developer has remained to be a mute
spectator. I would not be surprised that having taken such
position, he has put up the petitioners to oppose a deemed
conveyance for extraneous considerations.”
Thus clearly the said judgment is entirely inapplicable to the
facts of the present case.
24. In view of the aforesaid findings, the present Writ Petition is
allowed.
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th
December 2013 is set aside. Needless to state,
25. The order dated 9
Respondent No. 3 is at liberty to file a fresh Application for Deemed
Conveyance should Respondent No. 3 so choose to.
26. Before parting with this judgment, I must record my appreciation
for the most able assistance rendered by the Amicus Curiae in presenting the
case and the law without, at any stage, adopting an adversarial stance.
(ARIF S. DOCTOR, J.)
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