Research › Search › Judgment

Bombay High Court · body

2025 DIGILAW 1542 (BOM)

Harishchandra Anant Pandit v. Sai Asish Cooperative Society Limited

2025-12-11

AMIT BORKAR

body2025
JUDGMENT : AMIT BORKAR, J. 1. The petitioners invoke Article 227 of the Constitution to challenge the order dated 12 February 2015. By this order, the Competent Authority granted deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act in favour of respondent No.1. The petitioners claim to be the owners of the property in question. 2. The material facts are as follows: The land admeasures 4564.04 square metres. It bears Survey No. 26, CTS Nos. 31 and 32 at Mulund West. In 1962, the predecessor of the petitioners, Anant Pandit, granted a 99-year lease of this land to M/s. Bina Silk Mills, respondent No.7. Clause 1 of the lease required respondent No.7 to obtain permission from the Industrial and Labour Department for use of the land for power loom industry. Clause 2 permitted use of the land for such industry as approved by the Government and Municipal Corporation. Clause 3 permitted respondent No.7 to construct structures for industrial use after obtaining necessary approvals. Clause 6 fixed annual lease rent at Rs. 1,350. 3. On 25 June 1981, the partners of respondent No.7 converted the leasehold land into stock-in-trade. They valued the leasehold rights and brought the land into a new partnership named M/s. Bombay Construction Company, respondent No.2. A partnership deed was executed on 23 July 1981. On 22 January 1982, respondent No.7 sought construction permission under Sections 44 and 69 of the Maharashtra Regional Town Planning Act. On 27 January 1982, the owners, including petitioner No.1, submitted a no-objection before the Urban Land Ceiling authority. On 12 April 1982, an IOD was issued in the name of respondent No.7. On 14 April 1982, the commencement certificate was also issued in the name of respondent No.7. On 20 July 1988, flat purchasers executed agreements under MOFA with respondent No.2. On 16 December 1988, the Municipal Corporation issued a building completion certificate. On 26 December 1991, respondent No.1 society was registered. 4. On 8 April 2013, respondent No.1 society demanded conveyance. On 20 August 2014, the Competent Authority fixed a hearing on 23 September 2014. None appeared for the opponents. Fresh notice was issued fixing hearing on 16 October 2014. The opponents were directed to file reply and make submissions. Since none appeared, respondent No.1 issued letters to all legal heirs informing them of the scheduled hearing. On 20 August 2014, the Competent Authority fixed a hearing on 23 September 2014. None appeared for the opponents. Fresh notice was issued fixing hearing on 16 October 2014. The opponents were directed to file reply and make submissions. Since none appeared, respondent No.1 issued letters to all legal heirs informing them of the scheduled hearing. On 16 October 2014, petitioner No.2 sent a letter informing the Competent Authority that Anant Pandit had passed away in 1987 and provided names of his legal heirs. Still, none appeared at the hearing. The matter was adjourned to 20 November 2014. Again, none appeared. The matter was then adjourned to 15 December 2014. No one appeared. The matter was further adjourned to 12 January 2015. On 14 January 2015, 17 January 2015, and 2 February 2015, none appeared for the respondents despite private and public notices. The Competent Authority then closed the proceedings for orders. After closure, petitioner No.2 sent a letter on 3 February 2015 stating that no document showing privity between late Anant Pandit and the society had been filed. On 12 February 2015, the Competent Authority passed the impugned order directing conferment of deemed conveyance on the society. The petitioners have therefore approached this Court. 5. On 13 March 2015, this Court issued notice. It clarified that further steps pursuant to the impugned order would remain subject to the Court’s decision. 6. On 20 March 2018, the petitioners terminated the lease of respondent No.7 for non-payment of rent. In 2021, the petitioners filed T.E. and R. Suit No. 16 of 2021 before the Small Causes Court seeking resumption of the property. On 12 June 2014, the petitioners filed an application to implead respondent No.1 society as a necessary party to that suit. 7. Counsel for the petitioners submitted that the Competent Authority wrongly recorded that no reply was filed. He pointed out that a reply dated 3 February 2015 was already on record. He argued that Clauses 2 and 3 of the lease deed confined the use of the land to industrial purpose. He argued that respondent No.2 was never a lessee. He submitted that the petitioners never authorised respondent No.2 to construct the building. He stated that the petitioners do not fall within the definition of promoter under Section 2(c) of MOFA. He prayed for quashing of the impugned order. 8. He argued that respondent No.2 was never a lessee. He submitted that the petitioners never authorised respondent No.2 to construct the building. He stated that the petitioners do not fall within the definition of promoter under Section 2(c) of MOFA. He prayed for quashing of the impugned order. 8. Counsel for respondent No.1 submitted that the petitioners suppressed a material document. The document is the no-objection dated 27 January 1982 issued by the owners consenting to development. He argued that once the owners consented to development, they were required to disclose this fact in the writ petition. He submitted that suppression of this fact disentitles the petitioners from relief in writ jurisdiction. He submitted that the petitioners had sufficient notice of the proceedings. He argued that petitioners chose not to appear. He submitted that the letter dated 3 February 2015 was sent only after the proceedings were closed and could not be treated as a reply. He argued that the petitioners fall within the definition of promoter because they caused the construction. He submitted that until 2004 the petitioners accepted lease rent despite objecting to residential construction. He argued that the petitioners knowingly allowed the construction of residential tenements. He therefore claimed that the petitioners are promoters under MOFA. He relied on the judgment in Ramjas Foundation v. Union of India, (2010) 14 SCC 38 . He argued that suppression of the no-objection disentitles the petitioners from being heard. He submitted that the Competent Authority has a limited role. Its task is only to implement the statutory duty of the promoter to convey the property. He submitted that the writ petition deserves dismissal. 9. The land in question measures 4564.04 square metres. The lease in 1962 granted use to M/s. Bina Silk Mills for industrial purposes. The partners converted the leasehold into stock-in-trade in 1981. The land came into partnership as M/s. Bombay Construction Company. The record shows that respondent No.7 applied for development permission on 22 January 1982. On 27 January 1982 the owners, including petitioner No.1, gave a no- objection to the competent urban authority for the development sought. The IOD issued on 12 April 1982 and the commencement certificate issued on 14 April 1982 are official acts by the municipal and town planning authorities. Completion certificate followed in December 1988. Flat purchasers executed agreements under MOFA on 20 July 1988. The society registered on 26 December 1991. The IOD issued on 12 April 1982 and the commencement certificate issued on 14 April 1982 are official acts by the municipal and town planning authorities. Completion certificate followed in December 1988. Flat purchasers executed agreements under MOFA on 20 July 1988. The society registered on 26 December 1991. 10. The record of municipal and town planning approvals is evidence of lawful development. The IOD, commencement certificate and completion certificate are official documents. The no-objection dated 27 January 1982 is a material document. It states that the owners did not object to the development proposed. The petitioners did not place any explanation before the Competent Authority for that no-objection. That fact is central to the present controversy. 11. The law on deemed conveyance is well settled. MOFA imposes a duty on the promoter to execute conveyance in favour of the society once prescribed conditions are met. The Competent Authority has a confined role; it verifies compliance and, where appropriate, directs conveyance. This is an administrative but statutory function. The role does not involve deciding collateral disputes of title that fall outside the statutory mandate. 12. The petitioners argue that they are not promoters within Section 2(c) of MOFA. The section uses a wide phrase "promoter". The statute contemplates persons who cause construction either directly or through agents. The petitioners indubitably fall within this ambit for two reasons. First, they permitted the development by issuing the 27 January 1982 no-objection. That act enabled the promoters to obtain approvals and to carry out construction. Second, the petitioners accepted lease rent up to 2004 despite knowledge of the construction and residential occupation. Accepting lease rent while allowing the development to proceed is more than passive acquiescence; it amounts to conduct that caused or facilitated construction. 13. The petitioners attempt to confine the lease to industrial use by relying on Clauses 2 and 3 of the lease deed. Those clauses required permissions from the Government and the Corporation. The record shows that the municipal and planning authorities granted permission and issued certificates in the name of respondent No.7 or its successor. The owners cannot claim in 2015 that the construction was illegal when they had earlier given official no-objection and accepted rent. If they thought approvals were obtained in violation of the lease, their remedy was to have challenged those approvals earlier. Delay and acquiescence weaken that defence in this forum. 14. The owners cannot claim in 2015 that the construction was illegal when they had earlier given official no-objection and accepted rent. If they thought approvals were obtained in violation of the lease, their remedy was to have challenged those approvals earlier. Delay and acquiescence weaken that defence in this forum. 14. The Competent Authority recorded that no reply was on record. Counsel for the petitioners points to a letter dated 3 February 2015 which they say was filed as a reply. The record shows that the letter was sent after the Competent Authority had closed the proceedings for orders. The authority had issued multiple notices and fixed hearings on several dates. The petitioners or their authorised representatives did not appear on dates fixed for hearing. The society gave personal notices and published public notices. The competence of the authority to close the proceedings followed from non-appearance after proper notice. A belated communication sent after closure does not supply the opportunity of oral hearing or replace the earlier absence. The Competent Authority could not be expected to reopen its file where opponents chose not to attend despite multiple chances. 15. The petitioners also seek to rely on subsequent steps taken by them. They terminated the lease in March 2018 and filed a suit in 2021 in the Small Causes Court for resumption. These events postdate the Competent Authority’s order dated 12 February 2015. They do not cure the failure to participate in the statutory proceedings. They do not constitute evidence that the Competent Authority erred in 2015. 16. Learned counsel for the society submits that the petitioners suppressed the no-objection dated 27 January 1982. Suppression of material documents in writ proceedings is a serious matter. The no-objection was in the record of the statutory proceedings and was available to the petitioners. The petitioners’ writ statement does not explain their prior conduct in allowing development. A party approaching this Court by extraordinary relief must disclose material facts and documents. Failure to do so disentitles the party to equitable consideration. In my view, suppression of the NOC was material and unjustified. It vitiates the petitioners’ claim to relief in this Court. 17. The Competent Authority’s role was limited to verifying the statutory conditions. The record shows statutory conditions satisfied. Flat purchasers had valid agreements under MOFA. The building had completion certificate. The society registered. The society applied for conveyance in 2013. It vitiates the petitioners’ claim to relief in this Court. 17. The Competent Authority’s role was limited to verifying the statutory conditions. The record shows statutory conditions satisfied. Flat purchasers had valid agreements under MOFA. The building had completion certificate. The society registered. The society applied for conveyance in 2013. Notice and hearings were given. Opponents failed to appear. No document showing privity between the late lessor and the society was produced to suggest that the society’s claim was founded on fraud or misrepresentation. On the record before the Competent Authority there was no ground to withhold the relief the statute contemplates. 18. The petitioners argue that the Competent Authority misread facts. Judicial review in this Court is not an appellate re-evaluation of evidence where the statutory authority has not acted without jurisdiction or in breach of the rules of natural justice. The record demonstrates that the Competent Authority followed procedure. It issued notices. It afforded hearing dates. It closed proceedings after repeated non-appearance. It considered documents that were before it. There is no material to show that the Competent Authority acted mala fide or without jurisdiction. Mere error in appreciation of disputed facts would not justify this Court in exercising extraordinary jurisdiction to set aside a statutory order which is otherwise lawful and within jurisdiction. 19. I have considered learned counsel’s reliance on Ramjas Foundation. That judgment stands for the principle that suppression of material facts disentitles a party to equitable relief. The principle applies here. The petitioners failed to disclose the 27 January 1982 no-objection. The petitioners did not attend the hearings. They sent a communication after closure. They accepted rent for years. These facts, taken together, show that the petitioners cannot seek relief in this Court against the statutory process which they permitted to run its course without proper challenge. 20. The competence of the Competent Authority to grant deemed conveyance arises from the statute. The authority applied the law to the facts before it. The petitioners had adequate notice. They had opportunity to appear and to produce documents. They chose not to do so. They cannot now complain that the authority failed to consider a belated letter. 21. For these reasons the writ petition fails. I dismiss the petition. There will be no order as to costs. Parties will bear their own costs.