Taranjeet Singh Mohan Singh Sawhney v. Registrar, Coop. Societies

G.S Singhvi, J.— Leave granted. This appeal is directed against the order dated 20-2-2013 WP (C) No. 10287 of 2012 by which the learned Single Judge of the Bombay High Court refused to stay the order passed by Respondent 1, District Deputy Registrar, Cooperative Societies-cum-Competent Authority, Mumbai City (3)-cum-Competent Authority appointed under Section 5-A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 for grant of certificate to Respondent 3, Royal Diamond Park Cooperative Housing Society Ltd. to get a unilateral conveyance deed executed and registered in respect of an area measuring 2634.36 sq m out of CTSs Nos. 661 to 691 of Village Kole Kalyan, Bandra.

2. At the outset, we consider it proper to mention that when IA No. 3 of 2013 filed by Respondent 3 was listed for hearing, the learned counsel for the parties were heard on the merits of the case and the order was reserved.

3. Late Shri Mohan Singh (predecessor of the appellants) owned land measuring 4144.90 sq m comprised in CTSs Nos. 661 to 691 of Village Kole Kalyan, Taluka Andheri. On 16-10-1979 he entered into an agreement with Respondent 4 for sale of land measuring 3762.45 sq m. After the execution of the agreement, Respondent 4 constructed five buildings, which were occupied by the members of three cooperative housing societies i.e Respondents 3, 5 and 6.

4. Due to non-payment of the amount in terms of agreement dated 16-10-1979, the appellants, who are the legal heirs of late Shri Mohan Singh, issued notice dated 16-3-2005 and terminated the agreement dated 16-10-1979. After four years, Respondent 5 approached the appellants for purchase of 702.341 sq m out of the land owned by late Shri Mohan Singh. At the asking of the appellants, Respondent 5 produced the consent of Respondents 3 and 6. Thereafter, the appellants executed conveyance dated 25-8-2011 in favour of Respondent 5 and the developer, M/s Rahul Constructions.

5. Although the appellants had terminated the agreement dated 16-10-1979, Respondent 3 entered into an agreement with M/s Raja Construction Company (M/s Raja Builders) for redevelopment of the buildings of C, D and E Wings. In furtherance of the agreement entered with M/s Raja Builders, Respondent 3 filed an application in Form VII under Section 11(3) read with Section 11(4) of the 1963 Act and Rules 11, 12 and 13 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 and prayed for grant of a certificate for unilateral execution of the conveyance deed. Respondent 1 entertained the application and ordered notices to the appellants and Respondents 4 to 6.

6. In his reply dated 19-3-2012, Appellant 1 raised several objections to the maintainability of the application filed by Respondent 3. In the first place, he pleaded that the relief of specific performance of the agreement can be obtained only from a civil court and Respondent 1 did not have the jurisdiction to entertain the application. He also pleaded that the applicant (Respondent 3 herein) does not have the locus to file the application because the agreement dated 16-10-1979 executed by Shri Mohan Singh in favour of Respondent 4 had already been terminated. According to Appellant 1, he had already executed an agreement with one of the societies and M/s Rahul Builders and, therefore, Respondent 3 was not entitled to seek execution of unilateral conveyance in respect of 2507.62 sq m land. Some of the noticees also filed their affidavits. Thereafter, Respondent 3 filed rejoinder-affidavit.

7. Respondent 1 fixed the matter for hearing on 23-1-2012, 27-2-2012, 7-3-2012, 13-3-2012, 19-3-2012, 27-3-2012, 3-4-2012 and 17-4-2012. On 7-5-2012 the case was adjourned for 15-5-2012 with a direction to the appellants to file written arguments. However, the appellants did not file written arguments and applied for adjournment. Thereupon, Respondent 1 adjourned the case to 19-6-2012. After some time, he suo motu changed the date of hearing from 19-6-2012 to 21-5-2012 and a notice to this effect was issued by his office on 16-5-2012.

8. On 21-5-2012, Respondent 1 heard the arguments of the counsel for the applicant and closed the matter. He finally decided the application vide order dated 12-6-2012, the operative portion of which is reproduced below:

“Order and the Certificate

In exercise of the powers conferred on me under Section 5-A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, I, S.P Ghorpade, District Deputy Registrar, Cooperative Societies, Mumbai City (3), Competent Authority under Section 5-A of the Maharashtra Ownership Flats Act, 1963.

1. Certify under Section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, that the Royal Diamond Park Cooperative Housing Society Ltd., Datta Mandir Road, Kole Kalyan Vakola, Santacruz (E), Mumbai 400 055 is entitled and is a fit case to grant unilateral conveyance executed as deemed conveyance in their favour and to have it registered. Thus, it is entitled to have unilateral conveyance of land admeasuring gross plot area entitlement of 2634.36 sq m and net plot area of 2451.12 sq m out of the said larger land bearing CTS No. 661 to 691 of Village Kole Kalyan, Bandra, District Mumbai Suburban and the building constructed thereon known as Royal Diamond Park and is entitled to get the unilateral conveyance deed prepared and executed, as deemed conveyance and get it registered as provided under the Act.

2. I hereby authorise the applicant Society to prepare a conveyance deed to be executed as unilateral conveyance as deemed conveyance of all the right, title and interest of the promoter M/s Diamond Enterprises and Shri Mohan Singh Bhagwansingh Sawhney and on his demise his legal heirs referred to as Opponents 1 to 8, namely, (1) Mr Taranjeet Singh Mohan Singh Sawhney, (2) Mrs Jaspalkaur Chadha (3) Mr Sardar Tejinder Singh, (4) Mrs Gurmeet Kaur Sawhney, (5) Mr Inderpreet Singh Sawhney, (6) Mrs Amit Kaur Sabarwal, (7) Mrs Surjit Kaur Sawhney, and (8) Mrs Gajender Pal Kaur (being the landowners) and or their legal heirs/assignees and the executors in respect of land admeasuring about land admeasuring gross plot area entitlement of 2634.36 sq m and net plot area of 2451.12 sq m out of the said larger land bearing CTSs Nos. 661 to 691 of Village Kole Kalyan, Bandra, District Mumbai Suburban and the building known as ‘Royal Diamond Park (C, D and E Wings)’ constructed on the said plot of land in favour of it and also as provided under Section 11(5) of the Act, direct the Sub-Registrar or the appropriate Registration Officer concerned appointed under the Registration Act, 1908 (16 of 1908) to register this certificate issued by me along with the instrument of conveyance as unilateral conveyance as I have been exempted under the Act to appear before the Registration Authority, and after complying with the provisions of the law register such conveyance deed as deemed conveyance.

3. The applicant is directed to submit the certified copy of the conveyance deed, a unilateral instrument of conveyance as deemed conveyance registered by the Sub-Registrar or the Registration Officer appointed under the Registration Act, 1908 along with certified copy of Index II within two months of such registration as required under Rule 9(2) of the Rules.

4. The Sub-Registrar shall take further action under the Bombay Stamp Act, 1958, the Registration Act, 1908 and the Transfer of Property Act, 1882.

5. However this order is issued on the basis of documents and information submitted by the applicant and in the belief that there are no disputes regarding the title of the said land and subject to the following conditions:

(i) The information/documents furnished by the applicant are correct and genuine.

(ii) That if the above documents produced by the applicant are found hereinafter to be incorrect and not genuine, the applicant will be liable to face the consequences in accordance with the law.”

9. The appellants challenged the aforesaid order in Writ Petition No. 10287 of 2012. One of the grounds taken by the appellants was that Respondent 1 unilaterally changed the date of hearing and finally decided the matter without ensuring service of notice issued to the parties about the changed date of hearing. This is evident from the following statements contained in Paras (f) and (g) of the writ petition:

“(f) This application was opposed by the petitioners as also Respondent 5 and pleadings filed thereat. The Hon'ble Competent Authority despite the fact that the advocate for Respondent 3 submitting that she is not filing the rejoinder has taken the rejoinder on file and despite the fact that the matter was adjourned for filing surrejoinder/hearing on 19-6-2012, preponed the same to 12-6-2012 without giving notice to the parties and passed a judgment and order on 12-6-2012 stating that the matter was closed for order on 21-5-2012. Annexed hereto and marked as Ext. A is the copy of the order and judgment dated 12-6-2012 passed by Respondent 1 viz. the Deputy District Registrar (the Competent Authority) under Section 5-A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 entitling Respondent 3 to an order for unilateral conveyance executed as deemed conveyance in their favour for land admeasuring gross plot area entitlement of 2634.36 sq m and net plot area of 2451.12 sq m out of the common plot of land bearing Hissa Nos. 9 and 10 of Survey No. 422 and Hissa Nos. 5 and 3 (part) of Survey No. 423 corresponding CTSs Nos. 661 to 691 of Village Kole Kalyan, Taluka Andheri MSD admeasuring 4114.90 sq m, when the respondents were only concerned with the plot of land of 3762.45 sq m only.

(g) Respondent 3 after the impugned order dated 12-6-2012, immediately without due notice as required under the provisions of law with the assistance of Respondent 1 executed and registered the deemed conveyance executed on 14-6-2012 and registered on 18-7-2012 bearing Registration No. BDR-9/5980/2012 with Respondent 2. The said conveyance is thus bad in law and improper as no notice under the Registration Act was given to the petitioners.”

10. In Paras (2) and (3) of the counter-affidavit filed before the High Court, Respondent 1 averred as under:

“2. I say and submit that, the matter was heard on many occasions viz. on 23-1-2012, 27-2-2012, 7-3-2012, 13-3-2012, 19-3-2012, 27-3-2012, 3-4-2012, 17-4-2012, 7-5-2012 and 15-5-2012. The petitioners have been given ample opportunity by my predecessor to file their say in the interest of natural justice. The petitioners have already filed written reply on 19-3-2012 and thereafter opportunity of arguing the matter was given to the petitioners on 3-4-2012. Advocate of the applicant Society submitted that she does not want to file rejoinder and was ready for arguments. Thereafter it was incumbent on the petitioners to argue the matter or else to file written arguments. On the same date matter was adjourned for arguments to 17-4-2012. Advocate for the petitioners neither raised any objections nor he pleaded for longer date. Thereafter also on 17-4-2012 the advocate for the applicant Society filed rejoinder and copy was served on the petitioners on 17-5-2012. The petitioners were directed to file written arguments on or before the next hearing which was fixed on 15-5-2012. On 15-5-2012 also the petitioners did not file written arguments and submitted letter for keeping matter after 9-6-2012. Therefore the matter was fixed on 19-6-2012. But later on it was revealed that on 19-6-2012 nearabout 41 revision applications were listed on the board for hearing before this respondent and therefore it was decided to prepone the matter to 21-5-2012 and notices to that effect were sent to the petitioners by registered post but this office has not received acknowledgment from the Postal Department.

3. I say and submit that, the decision of preponing the matter was taken up by my predecessor solely in bona fide interest with a view to complete the proceeding within a period of six months as contemplated in Section 11(4) of MOFA, 1963.”

(emphasis added)

11. Along with the writ petition, the appellants filed an application for interim stay. The learned Single Judge took cognizance of the assertion made in the writ petition that notice of preponement of the date of hearing was not served upon them, but refused to grant stay on the ground that the writ petition was filed after four months of the order passed by Respondent 1 and during the intervening period conveyance deed had already been registered for a sum of Rs 95 lakhs and the Society and Respondent 3 had entered into development agreements with the builders.

12. Shri Mukul Rohatgi, learned Senior Counsel for the appellants argued that the order passed by Respondent 1 is liable to be declared as nullity because he arbitrarily preponed the date of hearing and decided the application of Respondent 3 without bothering to find out whether the notice issued to the parties about the changed date had been delivered/served. Shri Rohatgi referred to the English translation of the order-sheets recorded by Respondent 1, xerox copies of communications dated 15-2-2013 sent by the Senior Superintendent of Post Offices, Mumbai City (North) to Ms Pritha Dave, counsel for Respondent 3 and the counter filed on behalf of Respondent 1 before the High Court to show that the notice issued in terms of the direction given by Respondent 1 on 16-5-2012 was not served upon the appellants. The learned Senior Counsel then argued that due to non-service of notice, the appellants could not appear on 21-5-2012 and on that account their cause has been seriously prejudiced. Shri Rohatgi then submitted that the absence of the counsel/representatives of all the parties except Respondent 3 on 21-5-2012 should have alerted Respondent 1 that there was something wrong with the service of notice and prompted him to make an inquiry to ascertain whether the notice had been served on all the parties, but the officer concerned deliberately did not take any action in this regard and proceeded to close the matter for orders. Shri Rohatgi argued that the explanation given by Respondent 1 for preponing the date of hearing i.e fixation of excess number of cases on the particular date i.e 19-6-2012 should not be accepted because even on 15-5-2012, the officer concerned must have been aware of the fact that he had already fixed large number of cases on 19-6-2012.

13. Shri Shyam Divan, learned Senior Counsel for Respondent 3, supported the decision of Respondent 1 to prepone the date of hearing by pointing out that the officer concerned was compelled to do so because he was required to decide the application within six months of its institution. Shri Divan referred to the letter dated 15-2-2013/18-2-2013 sent by the Senior Superintendent of Post Offices, Mumbai City (North 2) to Ms Pritha Dave and argued that the intimation given to the appellants' counsel was sufficient to make them aware of the decision taken by Respondent 1 to prepone the date of hearing. Shri Divan submitted that the appellants cannot plead denial of hearing by Respondent 1 as the ground for quashing the order passed by him because their advocate had been duly intimated about the changed date of hearing. However, the learned Senior Counsel could not offer any clarification about the delivery of notice to the sender on 22-5-2012.

14. We have considered the respective arguments and carefully scrutinised the record.

15. By producing xerox copies of the receipt of speed post and two communications dated 15-2-2013 sent by the Senior Superintendent of Post Offices, Mumbai City (North) to Ms Pritha Dave, Respondent 3 has made an attempt to show that the appellants had been informed about the changed date of hearing, but we have not felt convinced. In the first place, the justification offered for preponement of the date of hearing is too weak to be accepted. It is neither the pleaded case of Respondents 1 and 3 nor has it been argued before us that the application filed by Respondent 3 was the only one dealt with by the officer concerned. Rather, the assertion contained in the counter filed by Respondent 1 before the High Court shows that a large number of similar cases were handled by the officer. Therefore, it can be presumed that he was aware of the imperative to decide the application within six months. Notwithstanding this, Respondent 1 fixed a large number of cases on 19-6-2012. Why he did so has not been explained. Why he singled out the application of Respondent 3 for preponing the date of hearing has also not been explained. Therefore, it is reasonable to infer that the action of Respondent 1 to prepone the date of hearing of the application was founded on extraneous reasons and was totally unwarranted and unjustified.

16. Secondly, the documents produced before this Court unmistakably show that notice issued to the appellants to apprise them about the changed date of hearing was not delivered to them. The statement made in Para (Z) of the counter-affidavit filed by Respondent 1 substantially supports the appellants' assertion that they had not received intimation about preponement of the date of hearing. It also belies the assertion of Respondent 3 that notice was delivered to the appellants before the date of hearing i.e 21-5-2012. If the notice had been duly served upon the appellants, then Respondent 1 would have produced the receipt of delivery. His failure to do so leads to an irresistible inference that the appellants were not made aware of the fact that the date of hearing had been changed from 19-6-2012 to 21-5-2012. The documents produced by Respondent 3 do not help us in resolving the controversy regarding service of notice on the appellants. The contents of these documents only add to the confusion. If the second letter dated 15-2-2013 sent by the Senior Superintendent of Post Offices was delivered on 22-5-2012 then we have no option but to hold that the notice issued by the office of Respondent 1 was delivered to the addressee on 22-5-2012 i.e one day after the date fixed for hearing.

17. As a corollary to the above findings, it must be held that the order dated 12-6-2012 passed by Respondent 1 is vitiated due to violation of the rule of audi alteram partem and is liable to be set aside.

18. In the result, the appeal is allowed. The impugned order WP (C) No. 10287 of 2012 as also the order dated 12-6-2012 passed by Respondent 1 are set aside and the matter is remitted to Respondent 1 for fresh disposal of the application filed by Respondent 3 for grant of certificate for unilateral execution of conveyance. Respondent 1 shall make an endeavour to decide the application of Respondent 3 within a period of three months from the date of receipt/production of a copy of this judgment without being influenced by the order dated 12-6-2012.