YOGESH JAYANT KHADILKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petition challenges order dtd. 31/3/2022 passed by the Competent Authority granting certificate of unilateral deemed conveyance of land and the building in favour of the Respondent No.3-Society.

(2.) I have heard Mr. Joshi, the learned counsel appearing for the Petitioner, whose main objection to the impugned order is conveyance of land and building in favour of the Society, whose building is yet to receive an occupancy certificate. He has relied upon Order passed by this Court in Janak Chimanlal Thacker and Ors. vs. Prathmesh Tower Premises Co-op. Housing Society Ltd. and others[Order dtd. 15/9/2021 passed in Writ Petition No.2314 of 2021] and Judgment in Tushar Jivram Chauhan and Anr. vs. The State of Maharashtra and Ors.[Judgment dtd. 24/3/2015 passed in Writ Petition (Stamp) No.17637 of 2014] in support of his contention that application under Sec. 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (the Act) cannot be entertained by the Competent Authority where the building is yet to receive occupancy certificate. In alternate, Mr. Joshi would contend that it was incumbent on the part of the Respondent-Society to atleast submit an undertaking/self-declaration as per the requirement of Government Resolution dtd. 22/6/2018 in respect of 'B' Wing Building, which admittedly does not have occupancy certificate. He would submit that since enquiry as mandated under provisions of Sec. 11 of the Act has not been conducted properly, the order of deemed conveyance is liable to be set aside.

(3.) The Petition is opposed by Mr. Master, the learned counsel appearing for Respondent No.3-Society, who would rely upon judgment of this Court in ALJ Residency Co-operative Housing Society Ltd. vs. State of Maharashtra and others,2024 SCC OnLine Bom 3638 . He would submit that this Court has concluded in judgment in ALJ Residency that an order of deemed conveyance can also be passed where building of the society is yet to receive occupancy certificate. Mr. Master would submit that in any case, there is already a part occupancy certificate in respect of the building of the Society and that therefore the objection sought to be raised by the Petitioner is otherwise not tenable. He would pray for dismissal of the Petition.