NAHAR SETH & JOGANI DEVELOPERS PVT LTD Vs. DY. REGISTRAR COOPERATIVE SOCIETIES AND COMPETENT AUTHORITY

JUDGEMENT

(1.) This Writ Petition takes exception to the impugned order and Certificate both dtd. 4/3/2022 issued by the Dy. Registrar Co-operative Societies and Competent Authority under Sec. 11 of the Maharashtra Ownership Flats Act, 1963 (for short "MOFA") granting deemed conveyance in favour of Respondent No. 2 - Society. According to Petitioner, deemed conveyance has been granted to the Respondent No. 2 - Society of certain portions of land belonging to the Petitioner in breach of the terms contained in the Consent Decree dtd. 6/2/2009 passed by the Bombay City Civil Court at Dindoshi in S.C. Suit No. 7410 of 1990 pursuant to the terms contained in Consent Terms dtd. 18/2/2000 which terms were consistently acted upon by both parties namely Petitioner and Respondent No. 2 - Society for more than 22 years.

(2.) Briefly stated the facts leading to filing of the present Petition are as under:-

(3.) Mr. Madon, learned Senior Advocate appearing on behalf of the Petitioner would submit that granting deemed conveyance for an area admeasuring 8384.57 sq. m. out of the larger property admeasuring 11427.20 sq. m. in the backdrop of the Consent Terms and Consent Decrees between the parties which have been admittedly acted upon by the parties for the past 22 years till this date and without any sub-division or demarcation of such an area is not only violative of the Consent Terms and Consent Decrees but completely arbitrary. Though he would submit that the Certificate issued by the Competent Authority states that it is subject to the Consent Terms, however granting deemed conveyance of an area of 8384.57 sq. m. is in complete contradiction of the Consent Terms and the Consent Decrees. He would submit that the Competent Authority has no jurisdiction to override and / or overreach the Consent Terms and the Consent Decrees as in the present case which are binding on the parties as Decrees of the Civil Court. He would submit that the impugned order and the Certificate issued by the Competent Authority are in complete breach and violation of the settled Consent Terms and the Consent Decrees and therefore illegal, arbitrary and against public policy. He would submit that the Consent Decrees operate as res judicata. The Consent Decrees dtd. 18/2/2000 and 6/2/2009 operate as res judicata as they finally decide the respective right and entitlement of both the parties and in that view of the matter they operate as an estoppel between the parties and continue to bind the parties and no party can agitate or claim contrary to the settled rights in the Consent Terms as agreed upon by them. He would refer to and rely upon the decisions in the case of Byram Gariwala Vs. Union Bank of India (1992) 1 SCC 31 and Ajanta LLP Vs. Casio Keisanki Kabushiki Kaisha (2022) 5 SCC 449 in support of his above proposition. He would submit that in any event Respondent No.2 - Society is estopped from claiming or receiving any right or area beyond what is contained in the two Consent Terms and Consent Decrees or in any different manner. He would submit that in view of the substantive amendments to MOFA in the year 2005 resulting in the introduction of Sec. 5A and 11(3), such provisions did not empower the Competent Authority to overreach and override the binding decrees and decisions of the Civil Court which crystallized and settled legal rights and entitlement of the parties and pass a decision contrary thereto. He would submit that the facts in the present case are extremely gross and hence the Petitioner has approached this Court without exhausting their remedy of Appeal as substantive rights of the Petitioner would be trampled upon if the impugned order and Certificate is acted upon and the deemed conveyance is registered in fvaour of the Society. He would submit that the Respondent No.2 - Society has raised only two defences namely that the Petitioner has an alternate remedy in the form of an Appeal as raised in paragraph No. 18 of its Affidavit-in-Reply and secondly the Petitioner failed to perform its obligation under the Consent Terms and did not execute the Deed of Conveyance. He would submit that in so far as the first defence is concerned, the facts in the present case are such that this Court needs to interfere in the impugned order to protect the rights of the Petitioner which have been crystallized under the Consent Terms and the Consent Decrees. Next, he would submit that the Petitioner has always been and is ready and willing to perform its obligations under the Consent Terms but it is Respondent No. 2 - Society which has refused to perform its obligation to execute the Indenture of Lease which was to be executed simultaneously on the Petitioner issuing / executing Deed of Conveyance. He therefore urges the Court to disregard the defence of the Society and interfere with the impugned order and Certificate issued by Respondent No. 1.