Case: M/S. Sawant Constructions &amp; Another Vs. Guruchhaya Co-Operative Housing Society Limited &amp; Others

3. Brief facts, which are relevant for the purpose of deciding the petition, are as under:Petitioner is a partnership firm, duly registered under the Indian Partnership Act, 1932 and is carrying on business as a developer and contractor. Respondent No. 1 is a housing Society, registered under theSocieties Act, 1960. There are two plots of land viz. Final Plot No. 51 (bearing CTS No. 514, 514/1 to 6) admeasuring 478.4 sq. mtrs., and Final Plot No. 52 (bearing CTS No. 515, 515/1 to 5) admeasuring 492.4 sq. mtrs. The first plot of land was owned by one Pralhad Krishnarao Kavatkar, and the second plot of land was owned by Mrs. Hirabai V. Solunki. The Petitioners initially entered into an agreement to sale with said Pralhad Kavatkar in respect of Final Plot No. 51, dated 4.9.1978. By the said agreement, the said owner agreed to sell the said property. The Petitioners submitted the development plan for development of the said property on Final Plot No. 51 and the Mumbai Municipal Corporation had issued IOD and commencement certificate. The Petitioner entered into an agreement for sale with Mrs. Hirabai Solunki in respect of final Plot No. 52, which is the property adjoining to Final Plot No. 51.4. The Petitioner constructed a ground + 4 storied building on Final Plot No. 51 and the flats in the said building were sold to intending purchasers, who later on formed the Society which is Respondent No. 1. A certificate of deemed conveyance under subsections (3) and (4) of Section 11 of the MOFA Act was issued. The District Dy. Registrar (Respondent No. 2, herein) after hearing both the parties and going through the evidence, which was produced before him, came to the conclusion that Respondent No. 1 Society was entitled to get a certificate of deemed conveyance in respect of Final Plot No. 51 as well as Final Plot No. 52. Being aggrieved by the said order, the Petitioners have approached this Court. The grievance of the Petitioners is that though Final Plot No. 52 was not to be conveyed to the Society, the District Dy. Registrar, without giving adequate reasons, had come to the conclusion that Respondent No. 1 Society was also entitled to get the certificate of deemed conveyance in respect of Final Plot No. 52. The learned senior counsel fairly and candidly submitted that the Petitioners did not have any grievance in respect of certificate of the deemed conveyance granted in respect of Final Plot No. 51. He, however, submitted that Respondent No. 2 had in two paragraphs viz. sub paragraphs (o) and (p) of paragraph 12 of the impugned order had discussed this issue and had concluded that Final Plot No. 52 also had to be conveyed to the Society. The learned senior counsel invited our attention to the Agreement dated 26.9.1979. By the said agreement, entered between the Petitioner and flat purchaser, Petitioners had agreed to convey only Final Plot No. 51, which was described in first Schedule of the said Agreement. He submitted that though in the Second Schedule of the said Agreement, there was a reference in respect of Final Plot No. 52, there was no agreement between the parties to covey the said plot to the Society. Our attention was invited to the various clauses of the said Agreement, and more particularly to clause 19 of the said Agreement, which refers to the area of the land described in First Schedule. It is submitted that a passing reference was made in respect of Final Plot No. 52 in the Agreement. There was no such reference in respect of Final Plot No. 52. It is submitted that, therefore, there being no agreement between the parties to convey Final Plot No. 52, it is not open for the District Dy. Registrar to pass an order granting certificate of deemed conveyance in respect of the said plot. It is submitted that it was not open for the District Dy. Registrar to go into the question of title between the parties, when there being dispute between the parties in respect of the said title. He further submitted that the parties had clearly understood that Final Plot No. 52 was not to be conveyed.

Reasoning: Learned senior counsel invited our attention to a letter dated 28.6.1991, written by the Chairman of the Society to the Petitioner, in which it was mentioned that a compound wall should be put up by the Petitioner, so that Final Plot No. 52 would be separated from the building, which was constructed on Final Plot No. 51.5. Reliance is placed on the judgment of the learned Single Judge of this Court in the case ofa Construction Company. Vs. Sultanbad Darshan CHS Ltd.. [2013(2) ALL MR278]. There is no dispute regarding ratio of this judgment. However, it has no application to the facts of the present case.After having heard both the counsel appearing on behalf of Petitioners and Respondent No. 1, we are of the view that it will not be possible to accept the submissions made by the learned senior counsel appearing on behalf of thethe present case, in our view, the District Dy. Registrar, after having gone through the documentary evidence on record, had arrived at a conclusion that there was an agreement to convey both the plots to the Society, and accordingly has recorded a finding to that effect. The Schedule which is annexed to the Agreement to Sale, which was entered into between the Petitioner and the flat purchasers, clearly stipulates that he Petitioner was obliged to convey both the Final plots to the Society. It is not in dispute that FSI on Final Plot No. 52 has been utilised for the construction of the building on Final Plot No. 51. Taking into consideration all the aforesaid facts, we are of the view that the District Dy. Registrar has not committed any error of law, either apparent on the face of record or any material irregularity, in referring the documentary evidence, which was produced before him. We are, therefore, not inclined to interfere with the impugned order dated 21st June, 2013, which is passed by the District Dy. Registrar, while exercising our writ jurisdiction under Article 226 of the Constitution of India.