Case Note & Summary
The petitioner, Prakash Arun Apte, proprietor of M/s A.V. Apte & Company, challenged an order dated 28 August 2014 passed by the Competent Authority and District Deputy Registrar, Cooperative Societies, Pune, which allowed an application for deemed conveyance filed by Respondent No.1, Narendra Cooperative Housing Society Limited, under Section 11(1) of the Maharashtra Ownership of Flats Act, 1963 (MOFA). The property in question comprised CTS No.92 and final Plot Nos.395 and 396, admeasuring 1019.6 sq.mts., originally owned by one S.G. Junjal. The entire plot was leased to the petitioner's father, Arun Apte, for 98 years by a registered Lease Deed dated 24 January 1975. The lease deed contained a covenant permitting the lessee to construct a building of flats and to create subleases in favour of any person or society. The petitioner constructed a building and formed the respondent society. The society applied for deemed conveyance under Section 11 of MOFA, which was allowed by the Competent Authority. The petitioner argued that since he was only a lessee and not the owner, the Competent Authority lacked jurisdiction to grant deemed conveyance. The Court examined the lease deed and found that it expressly authorized the lessee to create subleases, which included the power to convey the lessee's interest to the society. The Court held that the Competent Authority had jurisdiction to entertain the application and that the order granting deemed conveyance was valid. The Court also noted that the petitioner's challenge was without merit and dismissed the writ petition, upholding the Competent Authority's order. The petition was dismissed with no order as to costs.
Headnote
A) Cooperative Housing Society - Deemed Conveyance - Section 11 Maharashtra Ownership of Flats Act, 1963 - Maintainability - The issue was whether a deemed conveyance application under Section 11 of MOFA is maintainable when the developer holds only a leasehold interest in the land. The Court held that since the lease deed authorized the developer to create subleases in favour of flat purchasers or a society, the society was entitled to seek deemed conveyance. The Competent Authority's order granting deemed conveyance was upheld. (Paras 3-8)
B) Constitutional Law - Writ Jurisdiction - Article 227 of the Constitution of India - Scope of Interference - The Court reiterated that the supervisory jurisdiction under Article 227 is limited and does not extend to re-appreciating evidence unless there is a patent error of law or jurisdiction. The impugned order was found to be within the Competent Authority's jurisdiction and not perverse. (Para 9)
Issue of Consideration
Whether the Competent Authority under the Maharashtra Ownership of Flats Act, 1963 has jurisdiction to grant deemed conveyance in respect of leasehold property where the developer is a lessee and the lease deed authorizes creation of subleases.
Final Decision
The High Court dismissed the writ petition, upholding the order of the Competent Authority granting deemed conveyance. The Court held that the Competent Authority had jurisdiction to entertain the application and that the order was valid. No order as to costs.
Law Points
- Deemed conveyance under Section 11 of MOFA
- 1963 is maintainable even if the developer is a lessee
- lease deed authorizing sublease enables society to seek conveyance
- Competent Authority has jurisdiction to decide deemed conveyance applications
- writ petition under Article 227 has limited scope of interference.
Case Details
2015 LawText (BOM) (08) 31
WRIT PETITION NO. 9844 OF 2014
Mr. A. A. Kumbhakoni Senior Advocate a/w Mr. T. D. Deshmukh for the Petitioner, Mr. R. M. Pethe for the Respondent No.1
Narendra Cooperative Housing Society Limited, Sau Sushilabai Gulab Junjal, The Competent Authority and District Dy. Registrar, Cooperative Societies, Pune, The State of Maharashtra
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Nature of Litigation
Writ Petition under Article 227 of the Constitution of India challenging an order of the Competent Authority granting deemed conveyance under Section 11 of the Maharashtra Ownership of Flats Act, 1963.
Remedy Sought
The petitioner sought quashing of the order dated 28 August 2014 passed by the Competent Authority and District Deputy Registrar, Cooperative Societies, Pune, allowing the application for deemed conveyance filed by Respondent No.1 society.
Filing Reason
The petitioner, being the lessee of the land, contended that the Competent Authority lacked jurisdiction to grant deemed conveyance as the petitioner was not the owner of the land.
Previous Decisions
The Competent Authority and District Deputy Registrar, Cooperative Societies, Pune, by order dated 28 August 2014, allowed the application for deemed conveyance under Section 11(1) of the Maharashtra Ownership of Flats Act, 1963, filed by Respondent No.1 society.
Issues
Whether the Competent Authority under the Maharashtra Ownership of Flats Act, 1963 has jurisdiction to grant deemed conveyance in respect of leasehold property where the developer is a lessee and the lease deed authorizes creation of subleases.
Whether the impugned order of the Competent Authority is liable to be set aside under Article 227 of the Constitution of India.
Submissions/Arguments
The petitioner argued that since he was only a lessee and not the owner of the land, the Competent Authority had no jurisdiction to grant deemed conveyance under Section 11 of MOFA.
The respondent society contended that the lease deed authorized the lessee to create subleases, and therefore the society was entitled to seek deemed conveyance of the lessee's interest.
Ratio Decidendi
Under Section 11 of the Maharashtra Ownership of Flats Act, 1963, a cooperative housing society is entitled to seek deemed conveyance of the lessee's interest in the land if the lease deed authorizes the lessee to create subleases in favour of flat purchasers or a society. The Competent Authority has jurisdiction to grant such deemed conveyance, and the writ court under Article 227 will not interfere unless there is a patent error of law or jurisdiction.
Judgment Excerpts
The said lease contained a covenant that the Petitioner was entitled to construct a building consisting of flats on the said plots of land. The said Lease Deed also contained a covenant authorising the Petitioner to create a sublease in favour of any person or society as the lessee.
In the light of the said covenant in the Lease Deed, the Competent Authority was justified in allowing the application for deemed conveyance filed by the Respondent No.1 society.
Procedural History
The Respondent No.1 society filed an application under Section 11(1) of the Maharashtra Ownership of Flats Act, 1963 before the Competent Authority and District Deputy Registrar, Cooperative Societies, Pune, seeking deemed conveyance. The Competent Authority allowed the application by order dated 28 August 2014. The petitioner challenged this order by filing Writ Petition No. 9844 of 2014 under Article 227 of the Constitution of India before the High Court of Judicature at Bombay. The High Court dismissed the petition on 5 August 2015.
Acts & Sections
- Maharashtra Ownership of Flats Act, 1963: Section 11
- Constitution of India: Article 227
