BEENA'S COMPUTER TYPING AND SHORTHAND INSTITUTE

BOMBAY HIGH COURT P6 (English)

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It is contended on behalf of the Petitioner that withdrawal of the First Appeal by Respondent No.1-Society has given finality to the decree dated 7 November 1997. It is contended that when Civil Court has directed conveyance of only land appurtenant to Building Nos. A to H, J and K to Respondent No.1-Society, it was impermissible for that Society to file application for deemed conveyance before the Competent Authority. What is sought to be contended on behalf of the Petitioner may appear to be attractive in the first blush and ordinarily this Court would not countenance Competent Authority exercising jurisdiction under Section 11 of MOFA after adjudication of entitlement for conveyance by the Civil Court. However, what needs to be appreciated in the present case is the background in which the Suit was filed and the decree has been passed by the Civil Court. At the time when S.C. Suit No. 3226 of 1985 was filed, Petitioner-Developer had completed construction of only Building Nos. A to H, J and K and Respondent No.1-Society was formed by the flat purchasers thereof. Petitioner proposed to construct four more Building Nos., L, M, N and P by utilizing FSI flowing out of land surrendered for DP road Respondent No.1-Society was opposed to the said plans of the Developer and accordingly filed S.C. Suit No. 3226 of 1985 before the City Civil Court. The Suit was filed essentially to prevent the Petitioner from putting up construction of four additional budlings. No doubt, the Suit was also for claiming conveyance of the entire land in favour of Respondent No. 1 Society. Thus the first Respondent Society believed that the development potential in the layout was complete after construction of Building Nos. A to H, J and K and that therefore the entire land admeasuring 21736 sq. mtrs must be conveyed to it. However, during pendency of the suit, Petitioner was successful in constructing Building Nos. L and M and the Occupancy Certificate in respect thereof was issued in November 1990. Thus, by the time decree dated 7 November 1997 was passed, two more Building Nos. L and M were already constructed by the Petitioner on the land of which conveyance was sought by Respondent No.1-Society It appears that the City Civil Court took into consideration the fact that two more buildings had come up on the land and accordingly directed conveyance of only land appurtenant to Building.

It is contended on behalf of the Petitioner that withdrawal of the First Appeal by Respondent No.1-Society has given finality to the decree dated 7 November 1997. It is contended that when Civil Court has directed conveyance of only land appurtenant to Building Nos. A to H, J and K to Respondent No.1-Society, it was impermissible for that Society to file application for deemed conveyance before the Competent Authority. What is sought to be contended on behalf of the Petitioner may appear to be attractive in the first blush and ordinarily this Court would not countenance Competent Authority exercising jurisdiction under Section 11 of MOFA after adjudication of entitlement for conveyance by the Civil Court. However, what needs to be appreciated in the present case is the background in which the Suit was filed and the decree has been passed by the Civil Court. At the time when S.C. Suit No. 3226 of 1985 was filed, Petitioner-Developer had completed construction of only Building Nos. A to H, J and K and Respondent No.1-Society was formed by the flat purchasers thereof. Petitioner proposed to construct four more Building Nos., L, M, N and P by utilizing FSI flowing out of land surrendered for DP road Respondent No.1-Society was opposed to the said plans of the Developer and accordingly filed S.C. Suit No. 3226 of 1985 before the City Civil Court. The Suit was filed essentially to prevent the Petitioner from putting up construction of four additional budlings. No doubt, the Suit was also for claiming conveyance of the entire land in favour of Respondent No. 1 Society. Thus the first Respondent Society believed that the development potential in the layout was complete after construction of Building Nos. A to H, J and K and that therefore the entire land admeasuring 21736 sq. mtrs must be conveyed to it. However, during pendency of the suit, Petitioner was successful in constructing Building Nos. L and M and the Occupancy Certificate in respect thereof was issued in November 1990. Thus, by the time decree dated 7 November 1997 was passed, two more Building Nos. L and M were already constructed by the Petitioner on the land of which conveyance was sought by Respondent No.1-Society It appears that the City Civil Court took into consideration the fact that two more buildings had come up on the land and accordingly directed conveyance of only land appurtenant to Building.