Application of society for deemed conveyance – Owner – Lessor

Important Judgment dated 10.4.2023 of the High Court of Bombay for the housing societies, Lessors and Lessees, Promoters / Builders & Flat buyers

Order dated 9.12.2013 granting the Unilateral Deemed Conveyance of the land was challenged by the petitioners – Trust & Lessor on the ground that they were necessary party to the Application of the respondent no.3 Promoter / Builder and opportunity of hearing was necessary – HELD that the jurisdiction of the Authority (District Deputy Registrar, Cooperative Societies) is summary and not ministerial and requires consideration of relevant parameters laid down in para 23(B) the judgment, that the owner is necessary party and opportunity of hearing is to be given to the owner.

 

The petitioner no.1 is the Public Charitable Trust and owner of the land of 1041.65 sq.mts at Kurla, Chunabhatti Mumbai.   The petitioner nos.2 to 5 are the Trustees.

By the registered lease-deed dated 7.1.1067, monthly lease of the land was given to Asharam Pardeshi (the Lessee).  Although the lease permitted the Lessee to construct structures on the land after taking the petitioners’ permission, clause 3 prohibited “sub-letting, mortgaging, creating third-party rights or parting with possession of the land” without prior permission of the petitioners.  On determination of the lease, the Lessee would dismantle all structures on the land and hand over the said land in original condition to the petitioners.

The Lessee had assigned all his rights in the leased land to the Promoters / Developers (respondent no.8) through GPA.   The promoters had constructed multi-storied building.   The members of the respondent no.3 Cooperative Housing Society are flat purchasers under the Agreements for Sale governed by the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment) Act, 2005 (MOFA).

On 2.9.2005, the petitioners terminated the lease and filed the suit under Section 41 of the Presidency Small Causes Court Act, 1882, against the Lessee and Promoters / Developers for vacant possession.

In the written statement of the Promoters / Developers, the documents of NOC letter dated 27.4.1993 of the erstwhile Manager of the Trust for developing the said land and the impugned order dated 9.12.2013 granting Unilateral Deemed Conveyance were referred.

The petitioners had obtained information and documents of Deemed Conveyance granted vide order 9.12.2013 on the application of the respondent no.3 society.   It was found that the petitioners were neither made parties to the said application nor opportunity of hearing was given to them. Hence, they had filed the writ petition challenging the deemed conveyance dated 9.12.2013.

HELD

1. the society / flat purchasers in an application for Unilateral Deemed Conveyance are only entitled to the right, title and interest of the promoter in the land.
2. The petitioners had granted only a lease of the land to the Lessee, whereas, the Lessee had assigned all its right, title and interest in the said land to the Promoters / Developers.

iii.      The jurisdiction of the competent authority in deciding the application for Deemed Conveyance is summary and not ministerial.

1.  This requires application of mind, verification of applicant’s eligibility, examination of documents, ascertain whether the documents establish the title of the Promoters and whether the prayer is in consonance with the documents / agreements annexed to the applicant.
2. 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, building and the purchaser of the property.  Decision in tushar Jivram Chauhan and another (2015(4) ALL MR  223) was relied on.
3. Applicant seeking deemed conveyance would necessarily have to annex all the relevant documents to establish title of the Promoter, give notice to such parties of the said application and also join any person / entity whose right, title and interest in the said land is likely to be affected by an order of Unilateral Deemed Conveyance.

vii.     The writ petition was allowed and the order dated 9.12.2013 was set-aside.   However, the respondent no.3 was given liberty to file a fresh application for deemed conveyance if so desired.

Writ Petition No.555 of 2018 (OS) – A.H.Wadia Trust and others   Vs. State of Maharashtra and others.