Case: Sushil Samir Co-Operative Housing Society Limited Vs. District Deputy Registrar, Co-Operative Societies &amp; Others

has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v). In this context, therefore, it would be necessary to reproduce the conditions which are imposed by the Competent Authority under Clause 2(i) to 2(v), reads as under:2(i) The agreement for sale dated 12.3.1988 between the owners M/s. Music India Ltd. and M/s. Gokul Enterprises is not properly stamped. As per the modification done in the Bombay Stamp Act, 1958, w.e.f. 10.12.1985, the agreement for sale is deemed to be conveyance and the applicable stamp duty has to be paid. In case, stamp duty is not paid, it will not be admitted as evidence in any court of law, including before the competent Authority under section 34 of Bombay Stamp Act, 1958. Since agreement is to purchase entire property of 22407.20 Sq.Meters and not the part of the property which need to be conveyed to the society as the society has relied upon the agreement dated 12.3.1988 for getting deemed conveyance. The society should submit the duly stamped agreement for sale as required under Bombay Stamp Act, 1958.(ii) The property is a layout property and as per Govt circular dated 25.2.2011, the detailed guidelines are awaited before the same is decided by the Authority. The actual conveyance deed can be executed only after receiving the proper guidelines in the matter.(iii) The agreement for sale executed with individual flat owners are not having the land owners as the confirming party as per the Model Agreement prescribed in MOFA Rules in Form V and also as per the judgment of High Court in the matter of Ramaniklal Tulsidas Kotak Vs. Vasha Builders. The proper reasons and the evidence has to be given to establish the title flow and to grant the deemed conveyance.(iv) The plan submitted is for building No.5 and the existing Building (5 row houses, Building No.1 Wing C and B = 112 flats, Bld No.4 (A wing and Part B wing) 154 flats has consumed 15054.32 Sq. Meters and 1585.82 Sq. Meters is consumed for building No.5. So proportionate working is difficult. Proper architect certificate for entitlement of the area need to be submitted.(v) There are other societies in the layout known as Rihan, Krishna & Siddhant (Other societies in the layout) want to get the conveyance together and requested to give joint conveyance. The are should be ascertained by taking joint measurement of all the societies.14. Perusal of the said conditions, which are imposed, clearly reveal that Respondent No.1-Competent Authority did not have jurisdiction to impose the conditions which are mentioned in Condition Nos. 2(i) to (v) since the area, at the most, could have been considered by the Sub-Registrar.15. We do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing the Sub-Registrar to take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to the Sub-Registrar to take action in accordance with the provisions of sub-section (5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction Company & Ors. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]10. After having heard all the counsel at length and before dealing with the relevant rival submissions, it would be necessary to quickly have a look at the relevant provisions viz. Section 10 and 11. Section 10 of the said Act imposes an obligation on the part of the Promoter/Developer to convey the property to the flat purchasers and/or to the society of the flat purchasers. Section 11 of the said Act gives a power and authority to the Competent Authority which is constituted under section 5A of the MOFA Act to make an inquiry and find out whether the promoter who is obliged to convey the property to the society and if he has failed in his duty to fulfill that obligation and if it so, comes to the conclusion, then he has to make an inquiry after the applicant produces the relevant documentary evidence and records and, thereafter, issue a certificate of deemed conveyance in favour of such an applicant.Perusal of the facts of the present case, clearly reveal that the Competent Authority appointed under section 5A has transgressed its jurisdiction and has imposed conditions 2(i), 2(ii) and 2(iii), which do not fall within his jurisdiction and, as such, therefore, was not authorized to deal with the said issues which are found in Condition Nos. 2 (i) to 2 (v).Perusal of the said conditions, which are imposed, clearly reveal that RespondentWe do not have any hesitation to hold that the Competent Authority, therefore, has committed an error of law which is apparent on the face of record in imposing the condition Nos. 2(i), 2(ii) and 2(iii) in the impugned order. The said conditions, therefore, are quashed and set aside.16. So far as the condition Nos.2(iv) and 2(v) are concerned, in our view, the Competent Authority ought to have decided the said issue before issuing a certificate of deemed conveyance, and instead of that, the deemed conveyance certificate is issued. Subject to condition Nos. 2(iv) and 2(v) being imposed, he ought to have decided the area which was to be conveyed in favour of the Petitioner Society and other societies rather than saying that after the conditions imposed viz. 2(i) to 2(v) are complied with, only thereafter, the said certificate would become effective.17. We, therefore, of the view that the Competent Authority ought to have collected the relevant documents from the Petitioner and Respondent Nos.4,5 and 6 and then arrived at the conclusion regarding the area which was to be conveyed at least in favour of the Petitioner Society since no application has been filed by Respondent Nos.4,5 and 6 seeking deemed conveyance. We, therefore, direct the Competent Authority to make a further inquiry after calling upon the Petitioner and other Respondent Nos.4, 5 and 6 Societies to submit the documents regarding the area consumed by them and, thereafter, decide the question of area, and direction may be given by the Competent Authority to the Petitioner and to the Respondents to submit a proper Architects certificate for the entitlement of the area and other relevant documents. The said conditions 2(iv) and 2(v) are set aside and we direct the Competent Authority to determine the area which is to be conveyed in favour of the Petitioner Society as per the directions given hereinabove.18. So far as paragraph 3 of the impugned order is concerned, the words after the compliances of conditions mentioned hereinabove are set aside. Similarly in paragraph 5, instead of directing theto take action under Bombay Stamp Act, 1958 and Transfer of Property Act, 1882, a direction is given to theto take action in accordance with the provisions of(5) of Section 11 of the MOFA Act.19. The submissions made by the learned AGP appearing on behalf of the State cannot be accepted for the reasons mentioned hereinabove. So far as the judgment on which the reliance was placed by the learned AGP for the State viz. Mazda Construction CompanyOrs. (supra) is concerned, there cannot be any dispute regarding the ratio of the said judgment. However, in our view, the ratio of the said judgment will not apply to the facts of the present case since the issue involved in the said case is different. The Competent Authority had directed that certain area, which was disputed, should also be conveyed in favour of the said society without taking into consideration the objections which were raised and in that context, the Learned Single Judge had made the observations which are found in paragraphs 20 and 27 of the said judgment.