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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  4822       OF 2013 (Arising out of SLP(C) No. 12037 of 2013)

Taranjeet Singh Mohan Singh Sawhney and others ....Appellants

versus

District Deputy Registrar Cooperative Societies and others ....Respondents

J U D G M E N T G.S. SINGHVI, J.

1. Leave granted.

2. This appeal is directed against order dated 20.2.2013 by which the learned  

Single Judge  of  the  Bombay High Court  refused  to  stay  the  order  passed  by  

respondent  No.1  –  District  Deputy  Registrar  Cooperative  Societies-cum-

Competent  Authority,  Mumbai  City  (3)–cum–Competent  Authority  appointed  

under  Section  5A  of  the  Maharashtra  Ownership  Flats  (Regulation  of  the  

Promotion of Construction, Sale, Management and Transfer) Act, 1963 for grant of  

certificate  to  respondent  No.3  –  Royal  Diamond  Park  Co-operative  Housing  

Society Ltd. to get a unilateral conveyance deed executed and registered in respect  

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of an area measuring 2634.36 sq. mtrs. out of CTS Nos.661 to 691 of  Village Kole  

Kalyan, Bandra.  

3. At the outset, we consider it proper to mention that when IA No.3/2013 filed  

by respondent No.3 was listed for hearing, learned counsel for the parties were  

heard on the merits of the case and the order was reserved.  

4. Late  Shri  Mohan  Singh  (predecessor  of  the  appellants)  owned  land  

measuring 4144.90 sq. mtrs. comprised in CTS Nos. 661 to 691 of Village Kole  

Kalyan,  Taluka  Andheri.   On  16.10.1979,  he  entered  into  an  agreement  with  

respondent No.4 for sale of land measuring 3762.45 sq. mtrs.  After execution of  

the agreement, respondent No.4 constructed five buildings, which were occupied  

by the members of three Co-operative Housing Societies, i.e., respondent Nos. 3, 5  

and 6.  

5. 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 agreement dated 16.10.1979.  After four years,  

respondent No.5 approached the appellants for purchase of 702.341 sq. mts. out of  

the  land owned  by late  Shri  Mohan Singh.   At  the  asking of  the  appellants,  

respondent No.5 produced the consent of respondent Nos. 3 and 6.  Thereafter, the  

appellants executed conveyance dated 25.8.2011 in favour of respondent No.5 and  

the developer – M/s. Rahul Constructions.

6. Although  the  appellants  had  terminated  agreement  dated  16.10.1979,  

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respondent No.3 entered into an agreement with M/s. Raja Constructions Company  

(M/s. Raja Builders) for redevelopment of the buildings of ‘C’, ‘D’ and ‘E’ Wings.

7. In furtherance of the agreement entered with M/s. Raja Builders, respondent  

No.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.

8. Respondent  No.1  entertained  the  application and  ordered  notices  to  the  

appellants and respondent Nos. 4 to 6.  In his reply dated 19.3.2012, appellant  

No.1 raised several objections to the maintainability of the application filed by  

respondent  No.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 No.1 did not have the jurisdiction to entertain the application.  He also  

pleaded that the applicant (respondent No.3 herein) does not have the locus to file  

the  application because  agreement  dated  16.10.1979  executed  by  Shri  Mohan  

Singh in favour of respondent No.4 had already been terminated.  According to  

appellant No.1, he had already executed an agreement with one of the Societies  

and M/s. Rahul Builders and, therefore, respondent No.3 was not entitled to seek  

execution of unilateral conveyance in respect of 2507.62 sq. mts. land.  Some of  

the noticees also filed their affidavits.  Thereafter, respondent No.3 filed rejoinder  

affidavit.

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9. Respondent  No.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  No.1  adjourned  the  case  to  

19.6.2012.  

10. After sometime, 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.  On  

21.5.2012, respondent No.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 5A 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 5A 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  Co-operative  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. Meters and net plot area of 2451.12 Sq. Meters out of the said  larger  land bearing CTS  No.  661  to  691  of  Village  Kole  Kalyan,  Bandra,  District  Mumbai  Suburban  and  the  building  constructed  

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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 authorize 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 Mohansingh Bhagwansingh Sawheny and on his  demise his legal heirs referred as opponent No.1 to 8 namely viz (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 land owners) 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. Meters and net plot area of  2451.12 Sq. Meters out of the said larger land bearing CIS No. 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 concerned  appropriate Registration officer 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  Conveyance deed, an unilateral instrument of conveyance as deemed  conveyance registered by the Sub-Registrar or the Registration officer  appointed under Registration Act, 1908 along with certified copy of  index II within two months of such registration as required under 9(2)  of the Rules.

4. The Sub Registrar shall take further action under the Bombay  Stamp Act, 1958, The Registration Act, 1908 and 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  dispute  regarding the  title  of  the  said  land  and  subject  to  the  following conditions.

i. The information/documents furnished by the applicant are  

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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  be  face the consequences  in  accordance with the law.”

11. The  appellants  challenged  the  aforesaid  order  in  Writ  Petition  

No.10287/2012.  One of the grounds taken by the appellants was that respondent  

No.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 paragraphs f) and g) of  

the writ petition:

“f) This  application  was  opposed  by  the  petitioners  as  also  the  respondent nos. 5 and pleadings filed thereat. The Hon'ble Competent  Authority despite the fact that the Advocate for the respondent no. 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 sur- rejoinder/hearing on 19th June 2012, proponed the same to 12th June  2012 without giving Notice to the parties and passed a judgment and  order on 12th June 2012 stating that the matter was closed for order on  21st May 2012. Annexed hereto and marked as Exhibit A is the copy  of the Order and Judgment dated 12th June 2012 passed by Respondent  no.  1  viz.  the  Deputy District  Registrar  (the  Competent  Authority)  under section 5A of the Maharashtra Ownership Flats (Regulation of  the  Promotion of  Construction,  Sale,  Management  and    Transfer)  Act,    1963    entitling the respondents no. 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. mtrs and net  plot area of 2451.12 sq mtrs out of the common plot of land bearing  Hissa No. 9 & 10 of survey No. 422 and Hissa No. 5 & 3 (part) of  survey no. 423 corresponding CTS no.  661 to 691 of Village Kole  Kalyan, Taluka Andheri MSD admeasuring 4114.90 sq. mtrs, when the  respondents were only concerned with the plot of land of 3762.45 sq.  mtrs only.

g) The Respondents no. 3 after the impugned order dated 12th June  

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2012, immediately without due notice as required under the provisions  of  law  with  the  assistance  of  the  Respondent  no.  1  executed  and  registered the Deemed Conveyance executed on 14th June 2012 and  registered on 18th July 2012 bearing registration no. BDR-9/5980/2012  with the Respondent no. 2. The said Conveyance is thus bad in law and  improper as  no notice under the Registration Act was  given to  the  petitioners.”

12. In paragraphs (2) and (3) of the counter affidavit filed before the High Court,  

respondent No.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.  Petitioners  have been given ample opportunity by my predecessor to file their say  in the interest of natural justice. 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  Applicant  society submitted that she doesn't want to file rejoinder and was ready  for arguments. There after it was incumbent on 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 Petitioners neither  raise any objections nor he pleaded for longer date. Thereafter also on  17.4.2012 Advocate for Applicant society filed rejoinder and copy was  served on Petitioners on 17.5.2012.  Petitioners were directed to file  written  arguments  on  or  before  next  hearing  which  was  fixed  on  15.5.2012. On 15.5.2012 also Petitioners didn't file written arguments  and submitted letter for keeping matter after 9.6.2012. Therefore matter  was fixed on 19.6.2012. But later on it was revealed that on 19.6.2012  near  about  41  Revision Applications  were  listed  on  the  board  for  hearing before this respondent and therefore it was decided to pre-pone  the  matter  to  21.5.2012  and  notices  to  that  effect  were  sent  to  Petitioners  by  registered  post  but  this  office  has  not  received  acknowledgement from the postal department.

3. I say and submit that, the decision of preponing the matter was  taken by my predecessor solely in bonafide 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)

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13. 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 No.1 and during the intervening  

period conveyance deed had already been registered for a sum of Rs.95 lacs and  

the Society and respondent No.3 had entered into development agreements with  

builders.

14. Shri Mukul Rohatgi, learned senior counsel for the appellants argued that the  

order passed by respondent No.1 is liable to be declared as nullity because he  

arbitrarily preponed the date of hearing and decided the application of respondent  

No.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  No.1,  xerox  copies  of  

communications dated 15.2.2013 sent by Senior Superintendant of Post Offices,  

Mumbai City (North) to Ms. Pritha Dave, counsel for respondent No.3 and the  

counter filed on behalf of respondent No.1 before the High Court to show that the  

notice issued in terms of the direction given by respondent No.1 on 16.5.2012 was  

not served upon the appellants.  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 No.3 on  

21.5.2012 should have alerted respondent No.1 that there was something wrong  

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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 concerned officer  

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 No.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 concerned officer must have been aware of the fact that he had already fixed  

large number of cases on 19.6.2012.

15. Shri Shyam Divan, learned senior counsel for respondent No.3, supported  

the decision of respondent No.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 letter  

dated 15/18.2.2013 sent by 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  

No.1 to prepone the date of hearing.  Shri Divan submitted that the appellants  

cannot plead denial of hearing by respondent No.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, learned senior counsel could not offer any  

clarification about the delivery of notice to the sender on 22.5.2012.

16. We have considered the respective arguments and carefully scrutinized the  

record.

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17. By  producing  xerox  copies  of  the  receipt  of  speed  post  and  two  

communications dated 15.2.2013 sent by Senior Superintendent of Post Offices,  

Mumbai City (North) to Ms. Pritha Dave, respondent No.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 respondent Nos. 1 and 3 nor it has been argued before us that the  

application filed by respondent No.3 was the only one dealt with by the officer  

concerned.  Rather, the assertion contained in the counter filed by respondent No.1  

before the High Court shows that 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 No.1  

fixed large number of cases on 19.6.2012.  Why he did so has not been explained.  

Why he singled out the application of respondent No.3 for preponing the date of  

hearing has also not been explained.  Therefore, it is reasonable to infer that the  

action of respondent No.1 to prepone the date of hearing of the application was  

founded on extraneous reasons and was totally unwarranted and unjustified.   

18. 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 paragraph (Z) of the counter  

affidavit filed by respondent No.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  No.3  that  notice  was  delivered  to  the  

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appellants before the date of hearing, i.e., 21.5.2012.  If the notice had been duly  

served upon the appellants, then respondent No.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 No.3 do not help  

us in resolving the controversy regarding service of notice on the appellants.  The  

contents of these documents only adds to the confusion.  If the second letter dated  

15.2.2013  sent  by the  Senior  Superintendent  of  Post  Office was  delivered  on  

22.5.2012 then we have no option but to hold that the notice issued by the office of  

respondent No.1 was delivered to the addressee on 22.5.2012, i.e., one day after  

the date fixed for hearing.     

19. As  a  corollary to  the  above  findings,  it  must  be  held  that  order  dated  

12.6.2012 passed by respondent No.1 is vitiated due to violation of the rule of audi   

alteram partem and is liable to be set aside.

20. In the result, the appeal is allowed.  The impugned order as also order dated  

12.6.2012 passed by respondent No.1 are set aside and the matter is remitted to  

respondent No.1 for fresh disposal of the application filed by respondent No.3 for  

grant of certificate for unilateral execution of conveyance.  Respondent No.1 shall  

make an endeavour to decide the application of respondent No.3 within a period of  

three months from the date of receipt/production of a copy of this judgment without  

being influenced by order dated 12.6.2012.

     ......………………………..….J.  

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     [G.S. SINGHVI]

New Delhi,                 ...….……..…..………………..J. July 1, 2013.                  [RANJANA PRAKASH DESAI]   

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