Case Note & Summary
The petitioner, M/s. Blue Heaven Co-op Housing Society Ltd., filed a writ petition under Article 227 of the Constitution of India challenging the order dated 18th January 2023 passed by the Competent Authority dismissing its application under Section 11(3) of the Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) for a certificate of deemed conveyance. The factual background involves a dispute over land originally granted by CIDCO to Ambo Gadge and Shripat Patil, who allegedly assigned development rights to Respondent No.1, Punit Construction Company Pvt. Ltd. The society was registered in 2018 after a consumer forum order. The Competent Authority initially granted deemed conveyance in 2021, but that order was set aside by the High Court for not hearing the legal heirs of Ambo Gadge. After a de novo hearing, the Competent Authority rejected the application, leading to the present petition. The respondents raised a preliminary objection that the writ petition was not maintainable due to the availability of an alternate remedy by way of a civil suit, as the deemed conveyance order does not finally determine title. The petitioner argued that the rejection was erroneous and that the Competent Authority should have granted the certificate. The Court, after hearing submissions, upheld the preliminary objection, holding that the writ petition was not maintainable because the Competent Authority cannot adjudicate title disputes, especially when a civil suit (Special Civil Suit No.358 of 2019) was pending regarding ownership. The Court dismissed the petition, leaving it open to the petitioner to pursue the alternate remedy of a civil suit.
Headnote
A) Constitutional Law - Maintainability of Writ Petition - Alternate Remedy - Availability of civil suit as alternate remedy - The Court held that where the order of rejection of deemed conveyance does not conclude the issue of right, title and interest in the property, the petitioner has an alternate remedy of filing a civil suit, and thus the writ petition under Article 227 is not maintainable. (Paras 15-16)
B) Maharashtra Ownership of Flats Act, 1963 - Section 11(3) - Deemed Conveyance - Title Dispute - The Competent Authority under Section 11(3) cannot adjudicate disputed questions of title, especially when a civil suit is pending regarding ownership of the land. The rejection of the application was upheld as the authority rightly declined to decide title issues. (Paras 17-18)
Issue of Consideration
Whether the writ petition challenging the rejection of an application under Section 11(3) of MOFA is maintainable in view of the alternate remedy of filing a civil suit, and whether the Competent Authority can adjudicate title disputes while deciding a deemed conveyance application.
Final Decision
The writ petition is dismissed as not maintainable in view of the alternate remedy of filing a civil suit. The petitioner is at liberty to pursue the alternate remedy.
Law Points
- Maintainability of writ petition under Article 227
- Alternate remedy
- Scope of Section 11(3) of MOFA
- Title dispute not to be adjudicated by Competent Authority
Case Details
2024 LawText (BOM) (11) 212
WRIT PETITION NO. 2455 OF 2023
Mr. N. V. Walawalkar, Senior Advocate along with Mr. Suresh Sabrad, Mr. Pratik Sabrad, Mr. Amey Sawant, Neha Zanje for the Petitioner. Mr. Surel S. Shah, Senior Advocate along with Mr. Chinmay Acharya for the Respondent No.7 and 8. Mr. Mayur Khandeparkar, Nishant Tripathi, Pranav Vaidya i/b M. Tripathi & Co., for the Respondent No. 1. Dr. Abhinav Chandrachud, Mr. Omkar Kulkarni for the Respondent Nos. 2 to 4. Mr. Girish S. Godbole, Senior Advocate along with Mr. Chinmay Acharya for the Respondent No. 5 and 6. Mr. Rohit Sakhadeo for the Respondent No. 10 and 11 – CIDCO. Ms. P. J. Gavhane, AGP for the Respondent-State.
M/S. Blue Heaven Co-op Housing Society Ltd
M/s. Punit Construction Company Pvt. Ltd. & Ors.
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Nature of Litigation
Writ petition under Article 227 challenging rejection of application under Section 11(3) of MOFA for deemed conveyance.
Remedy Sought
Petitioner sought quashing of order dated 18th January 2023 rejecting its application for deemed conveyance and direction to Competent Authority to grant the certificate.
Filing Reason
The Competent Authority rejected the petitioner's application for deemed conveyance under Section 11(3) of MOFA, leading to the filing of this writ petition.
Previous Decisions
The Competent Authority initially granted deemed conveyance on 20th May 2021, but that order was set aside by the High Court on 30th November 2022 for de novo hearing. After de novo hearing, the application was rejected on 27th January 2023.
Issues
Whether the writ petition under Article 227 is maintainable in view of the alternate remedy of filing a civil suit?
Whether the Competent Authority under Section 11(3) of MOFA can adjudicate title disputes?
Submissions/Arguments
Respondents 2-4 argued that the writ petition is not maintainable due to alternate remedy of civil suit, relying on Subhash Ramchandra Navare v. Premji Meghji Rambia, Shimmering Heights CHS Ltd v. State of Maharashtra, and Mehboob Ali Humza v. Dist. Sub Registrar, Mumbai.
Petitioner argued that the decisions relied upon by respondents arise from grant of deemed conveyance and are distinguishable; relied on Vishnu Krishna Dhadphale v. Competent Authority and District and New Manoday CHS Ltd v. Uday Madhavrao Jagtap.
Ratio Decidendi
A writ petition under Article 227 challenging an order rejecting an application under Section 11(3) of MOFA is not maintainable when the order does not finally determine title and an alternate remedy of civil suit is available. The Competent Authority under MOFA cannot adjudicate disputed questions of title.
Judgment Excerpts
At the outset, Dr. Chandrachud learned counsel for the Respondent Nos.2 to 4 raised a preliminary objection of maintainability on the ground of availability of an alternate remedy of filing civil suit.
The Competent Authority has non-suited the Petitioner by going into the title dispute...
Procedural History
The petitioner filed an application under Section 11(3) of MOFA before the Competent Authority, which was initially rejected on 5th July 2019. That order was set aside by the High Court in WP No.11786 of 2019 on 30th January 2020 and remanded. On remand, the Competent Authority allowed the application on 20th May 2021. That order was challenged by respondents and set aside by the High Court on 30th November 2022 for de novo hearing. After de novo hearing, the Competent Authority rejected the application on 27th January 2023, leading to the present writ petition.
Acts & Sections
- Maharashtra Ownership of Flats (Regulation of Promotion of Construction, Sale, Management and Transfer) Act, 1963: Section 10, Section 11, Section 11(3)
- Maharashtra Co-operative Societies Act, 1960: Section 21A, Section 152
- Constitution of India: Article 226, Article 227
- Maharashtra Stamp Act, 1958: Section 31
- Maharashtra Municipal Corporations Act: Section 264
