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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8844 OF 2016
Aghadi Nagar Co-operative Housing Society Ltd.
Through its Authorised Representative .. Petitioner
Mr. Satyam R. Dubey, Advocate for Petitioner.
Mr. S.D. Rayrikar, AGP for Respondent – State.
Ms. M.J. Reena Rolland a/w. Ms. Aishwarya Bhandary, Advocates for Respondent Nos.5(a) to 5(e) and 7. .....…........…
JUDGMENT
1. Heard Mr. Dubey, learned Advocate appearing for Petitioner; Ms. Rolland, learned Advocate appearing for Respondent Nos.5(a) to 5(e) and 7 and Mr. Rayrikar, learned AGP for Respondent Nos.[1] and 2.
2. The present Writ Petition impugns the judgment dated 24.11.2015 passed by the Competent Authority and Deputy District No.DC1000698/2014 under Section 11(3) of the Maharashtra Ownership Flats Act, 1963 (for short ‘MOFA’) filed by Petitioner – Society for grant of unilateral deemed conveyance of the plot of land bearing No.88/1A Hissa, Dargah Cross Road, Bhandup (West), Mumbai – 400 078, admeasuring 5600 sq. mts. (for short ‘suit Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 1 of 15 premises’). The impugned order is appended at page No.60 of the Petition.
3. Brief facts of the case are that Petitioner is a Co-operative Housing Society registered under the Maharashtra Co-operative Societies Act, 1960 situated on the aforementioned suit premises. The said Society was registered on 04.08.1997.
4. On 14.01.2015 Petitioner – Society i.e. original Applicant filed an Application before the Competent Authority for deemed conveyance. By order dated 24.11.2015 Respondent No.2 rejected the said Application on the ground for non-compliance of some requirements by the Petitioner – Society as stated in paragraph Nos.[3] to 6 of the impugned order.
5. Hence, the present Writ Petition.
6. On 18.06.2025, after hearing Mr. Dubey, learned Advocate for Petitioner, Mr. Rayrikar, AGP for Respondent – State and Ms. Rolland, the following order was passed:-
1. Heard Mr. Dubey, learned Advocate for Petitioner; Mr. Rayrikar, learned AGP for the State and Ms. Rolland, learned Advocate for Respondent Nos.[5] and 7.
2. Ms. Rolland, learned Advocate for Respondent Nos.[5] and 7 informs the Court that Respondent No.5 has expired on 21.09.2024. She has placed on record the names of the legal heirs of deceased Respondent No.5. She undertakes to file Vakalatnama on behalf of heirs of Respondent No.5 once they are impleaded. She is directed to give their names to Mr. Dubey forthwith. Mr. Dubey is directed to carry out the necessary amendment of impleadment of the legal heirs forthwith in the Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 2 of 15 presence of the Court. Re-verification stands dispensed with. Copy of the amended cause title shall be served on Ms. Rolland, learned Advocate for the newly added legal heirs of deceased Respondent No.5. She would persuade the Court to give her time to file appropriate Affidavit-in-Reply on behalf of the newly added Respondents. I make it clear that the Reply, if any, should be filed within a period of one week from today, failing which this Court shall not await the reply and proceed with the Petition in accordance with law. This is because the Writ Petition is filed in the year 2016 and it is an irony that it has remained pending and has been adjourned from time to time as complained by Mr. Dubey.
3. Mr. Dubey would submit that grievance of the Society is that despite the development having completed long back, they applied for deemed conveyance, but their Application for deemed conveyance was rejected by the Competent Authority by the impugned order dated 24.11.2015 appended at page No.62 of the Petition. He would draw my attention to the reasons and findings in the said order at page No.67 and would submit that in effect when the same is read, there is no compliance whatsoever required from the Society and the Application has been dismissed on innocuous grounds. He would submit that Society has the answers to the queries stated in the impugned order.
4. He would submit that as is apparent from the said order, the Competent Authority has stated that Society would have to comply with IOD obligations when it is the duty of the Developer to have complied with the IOD obligations. It is seen that the details of said IOD obligations are not stated in the order and there is simplicitor reference made thereto. In that view of the matter, the objection which is appearing in clause 3 of the findings of the impugned order is not sustainable in my opinion.
5. Next he would drawn my attention to the objections raised with respect to pendency of Civil Suit No.4798 of 2012 in the City Civil Court which was filed by the Society against the Developer. In that regard, he would submit that said Suit has already been dismissed and intimation of the same has already been provided, but the same has not been taken into cognizance by the Competent Authority. He would submit that the said Suit was dismissed on 26.02.2016. Copy of that order is placed before the Competent Authority. Copy of the said dismissal order is part of the rejoinder in the present proceedings placed at page No.366.
6. The final objection in the impugned order is that copy of OC has not been annexed to the Application. In that regard, he would drawn my attention to Circular dated 18.09.2017, copy of which is appended at page No.367 of the Petition. He would submit that in view of the aforesaid Government Circular all that the Society would have to submit is an undertaking which the Society is ready and willing to submit in lieu of OC to the Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 3 of 15 Competent Authority.
7. In that view of the matter, according to Mr. Dubey, no other objections survive in the impugned order and there can be no impediment for grant of deemed conveyance.
8. Ms. Rolland, learned Advocate for newly added Respondents and Respondent No.7 who are owners of the property shall take cognizance of the impugned order as also the aforesaid order and accordingly apprise the Court about her objections on the next adjourned date. If any reply is to be filed, the same shall be filed as directed. Learned AGP shall also consider the impugned order and issues raised therein and apprise the Court about the same on the next date.
9. List the Writ Petition on Board on 1st July 2025. To be treated as ‘Part-Heard’ on the Supplementary Board in view of the request made by Mr. Dubey, learned Advocate for the Society.
7. I have heard Mr. Dubey and noted the three noncompliances by the Society for rejection of the Society's Application for deemed conveyance.
8. PER CONTRA, Ms. Rolland, learned Advocate appears for original Respondent Nos.[5] and 7. She would submit that Respondent Nos.[4] to 8 are the original owners of the said plot of land. Respondent Nos.5(a) to 5(e) are legal heirs of deceased Respondent No.5. Respondent No.5(e) is the Power of Attorney Holder for Respondent Nos.[5] to 7. Respondent No.5(d) has filed Affidavit-in-Reply in the Petition appended at page Nos.535 to 578 of the Petition.
8.1. She would make submissions in support of the impugned order. She would submit that Petitioner – Society is not entitled to grant of deemed conveyance as it has failed to comply with the mandatory provisions of MOFA as Petitioner – Society and did not Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 4 of 15 submit the proper and necessary documents for compliance.
8.2. She would submit that Section 11 of MOFA is always read in conjunction with Sections 4 and 10 of MOFA. Hence according to her, it is necessary to comply with the provisions of Sections 4 and 10 of MOFA alongwith Rules 11, 12 and 13 of thereof. She would submit that Section 11(3) of MOFA permits Petitioner – Society to make an application to the Competent Authority for Deemed Conveyance which required accompaniment of mandatory documents. She would submit that Petitioner – Society failed to submit those mandatory documents.
8.3. She would submit that Competent Authority has only raised four objections in its order dated 24.11.2015, however there are other discrepancies which the Competent - Authority has failed to raise in the present case. She would fairly submit that to that extent her clients have not challenged to impugned order.
8.4. She would submit that Petitioner-Society has failed to implead the Promoter as party to the said Application under Section 11(3) of MOFA which itself vitiates the said proceedings for nonimpleadment of necessary party.
8.5. She would submit that as per the Agreements entered between the Promoter and Flat purchasers which are registered as per the provisions of the Registration Act, 1908 only those registered members are entitled to approach the Competent Authority for seeking Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 5 of 15 deemed conveyance through the Society.
8.6. She would submit that Petitioner - Society has annexed the registration Certificate of the said Society of the year 1997, wherein it is stated that the Society consisted a total of 120 members including residents of Building No.3 (Wing 3A and Wing 3B) and Building No.4 (Wing 4A and Wing 4B). However the same is falsified as Building No.4 was not a part of the Petitioner – Society in the year 1997 as its construction was not completed and the Society consisted of Building No.3 (Wing 3A and Wing 3B) with 66 members only. She would submit that the same is confirmed by the Assistant Registrar in its reply dated 04.08.1997 which is appended at page No.183. She would fairly inform the Court that the Promoter did not challenge the registration in the year 1997 for which she has no answer.
8.7. She would submit that the Petitioner - Society claimed that it consisted of 120 members and stated that Agreement for Sale of all 120 members are registered in accordance with the provisions of Registration Act, 1908, however it was seen that registration numbers of some Agreements were missing. She would submit that details / registration numbers of documents of some members mentioned are mere random numbers as no such registration numbers are in existence. Also with regard to two flats - Serial No.79 and 95 it is stated as 'not traceable'. Hence she would submit that mandatory Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 6 of 15 provisions of Section 11(3) of MOFA are not complied with as the Application is not accompanied by true copies of registered Agreements for Sale between the Promoter and individual member of the Society.
8.8. She would submit that Petitioner - Society annexed an Agreement for Sale below Exhibit 'D' of one of the member named Mr. Iftikar Ahmad - owner of Flat No.104. However she would submit that it is a one sided Deed of Confirmation dated 10.12.1996. She would submit that Agreement for Sale dated 05.06.1991 executed between Promoter and Mr. Iftikar Ahmad was unregistered and later on a one sided Deed of Confirmation was executed and registered. Hence she would submit that it is settled law that if the first document is unregistered, registration of subsequent documents becomes invalid since as per provisions of MOFA application for deemed conveyance required registered Agreements for Sale of all members.
8.9. She would submit that the original Building Plan consist of 130 units however the Petitioner - Society has falsely stated in its online Application of deemed conveyance that the building consists of 120 units showing 115 units as residential and 5 units as commercial.
8.10. She would submit that as per sanctioned plan of Building No.4, 8 flats are supposed to be handed over to the Municipal Corporation for a Municipal Dispensary however the same is not Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 7 of 15 complied with till date by Petitioner – Society due to which Completion Certificate for Building No.4 is not issued till date.
8.11. She would submit that Respondent No.9 - Promoter has not entered into any Agreement for development or sale of the land which belongs to Respondent Nos.[4] to 8. She would submit that on perusal of Agreement for Sale of members it is seen that there is no mention of by virtue of which document the Promoter acquired his right, title and interest in the land. She would submit that Respondent No.9 - Promoter has not made Respondent Nos.[4] to 8 as the confirming parties as per the provisions of Section 3 of MOFA read with Rule 5 of the MOFA Rules.
8.12. She would submit that on 08.03.2016, Municipal Corporation issued notice under Section 55(1) of MRTP Act for illegal constructions which was challenged by Petitioner - Society by instituting L.C. Suit No.889 of 2016 which is pending before the City Civil Court, Mumbai. Hence she would submit that as per provisions of MOFA, if any dispute or litigation is pending the said Society is not entitled to grant of deemed conveyance.
8.13. In support of her above submissions, she has referred to and relied upon the following decisions of the Supreme Court and this Court:- Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 8 of 15
(i) Mahnoor Fatima Imran and Ors. Vs. M/s Visweswara
(ii) Mazda Construction Company and Ors. Vs. Sultanabad
(iii) Tushar Jivram Chauhan and Anr. Vs. State of
8.14. Hence, she would submit that Petitioner – Society is not entitled to grant of deemed conveyance and would urge the Court to dismiss the present Writ Petition.
9. I have heard Mr. Dubey, learned Advocate appearing for Petitioner, Ms. Rolland, learned Advocate appearing for Respondent Nos.5(a) to 5(e) and 7 and Mr. Rayrikar, learned AGP for Respondent Nos. 1 and 2 and perused the record of the case. Submissions made by the learned Advocates for parties have received due consideration of the Court.
10. At the outset it is seen that the impugned order dated 24.11.2015 passed by Respondent No.2 - the Competent Authority rejects deemed conveyance of the Society mainly on the basis of three objections/issues requiring compliance. Firstly, it is seen that Competent Authority rejected the Application on the ground that some IOD obligations are not fulfilled. In this regard, it is clear that IOD obligations are squarely the responsibility of the Promoter/Developer
3 Civil Writ Petition(Stamp) No. 17637 of 2014, decided on 24.03.2015. Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 9 of 15 and not of the Society or flat purchasers which is further clearly confirmed by the order of the City Civil Court dated 28.10.2010. It is seen that the impugned order merely refers to non- compliance of IOD in general terms without even specifying which particular condition is not complied with. In that view of the matter the said objection is not sustainable at all and cannot be countenanced.
11. It is seen that Respondent No.2 – Competent Authority has erroneously relied on pendency of the Civil Suit No. 4798 of 2012 as a bar to grant of deemed conveyance. This ground is also agigated by the owners of the property through Ms. Rolland. However record shows that said Suit came to be dismissed by order dated 26.02.2016 and despite been informed, the same is completely ignored by the Competent Authority. Further pendency or dismissal of civil disputes between Petitioner – Society and the Promoter does not create an impediment with respect to the statutory remedy under Section 11(3) of MOFA which is enacted to confer title in cases of inaction by Promoters. Hence, this ground also on the face of record is unsustainable.
12. The third objection is with regard to absence of Occupation Certificate (OC) which stands squarely answered by compliance of the condition stipulated in the Government Circular dated 18.09.2017 issued by the Housing Department, Government of Maharashtra which Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 10 of 15 is appended at page No.367 of the Petition. It permits submission of an undertaking by the Society in lieu of OC in support of the deemed conveyance Application. The Petitioner – Society categorically stated its willingness to comply with the said requirement despite which the said objection is upheld.
13. Prima facie none of the 3 objections given by the Competent Authority in the impugned order for rejection of the deemed conveyance Application of the Society are sustainable and for the above reasons they are dismissed by this Court.
14. With regard to absence of registered Agreements in a few instances, it does not vitiate the right to grant of deemed conveyance in its entirety. The Petitioner-Society has annexed over 100 registered Agreements hence minor omissions or documentary lapses in a handful of cases cannot defeat the right of the Petitioner - Society. However execution of Agreements, possession, and payment of consideration and most importantly the stamp duty and registration of documents are undisputed facts.
15. The objection regarding non-impleadment of Respondent No.9 - Promoter in the original Application is a technical plea. Record indicates that Respondent No.9 - Promoter is a party to this proceedings and has been duly served and heard. However it is settled law that a Promoter can resist the relief of deemed conveyance on the Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 11 of 15 ground that structures are illegal or no Occupation Certificate has been granted or he has further development to carry out in the layout. The planning regulations permit the owner of the properties to apply for regularization of the structure and in the event if the Co-operative Society is granted deemed conveyance. In any event, presence of the Promoter at this stage in the present Writ Petition cures the alleged defect, particularly when no prejudice has been shown to have been caused. Thus, this objection does not survive. If any of the owner is aggrieved with the Promoter, which is the case argued by Ms. Rolland, the remedy lies in the Civil Court and not in these proceedings against the Promoter and not the Society.
16. It is seen that the Advocate for private Respondents / owner has argued that the Building No.4 was not part of the Society at the time of registration in the year 1997. The inclusion of flat purchasers of Building No.4 as members is supported by subsequent development. The duplication of serial numbers or non-traceability of a few Agreements are clerical irregularities as 114 out of 120 flat purchasers have submitted their registered documents appended at page No.19 of the Petition. Hence, in my opinion it does not affect substantial compliance with statutory requirements. Further, if the owner or Promoter had any issue with registration of the Society which was registered decades ago, they ought to have taken appropriate action Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 12 of 15 for cancellation of registration, which they failed.
17. The argument of Ms. Rolland that Promoter lacked title or that the landowners were not made confirming parties is completely misconceived. The Promoter executed Agreements, accepted sale consideration and delivered possession to flat purchasers/members of the Society in the decade of the Nineties. The lack of a formal development Agreement or absence of the landowners as confirming parties does not preclude grant of deemed conveyance when the construction and sale are evident on the basis of registered Agreements. The object of Section 11(3) is to confer ownership on lawful purchasers, notwithstanding title disputes between Promoters and landowners which are to be agitated in the Civil Court. It is pertinent to note that if the argument of the Advocate for Respondent / owner is to be accepted then it is surprising that the owners have not taken any steps in the past several years to agitate their alleged right.
18. The pendency of L.C. Suit No. 889 of 2016 and the Municipal notice dated 08.03.2016 issued under Section 55(1) of the MRTP Act pertaining to alleged unauthorised constructions do not relate to grant of deemed conveyance to the Society. Considering the proceedings under the MRTP Act or Municipal notifications it is seen that it does not constitute a bar under MOFA for grant of deemed Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 13 of 15 conveyance, unless there is a finding of fraud or unlawful possession which is absent in the present case. According to Mr. Dubey, the Suit in the present case is pending.
19. It is seen that the Petitioner - Society is registered under the Maharashtra Co-operative Societies Act, 1960, having been formed in
1997. Form VII along with all requisite annexures has been submitted and scrutinised. Both Buildings are complete and in possession of the members. There is substantial compliance with the requirements under Section 11(3) of MOFA. The Society has further undertaken to furnish the Affidavit in lieu of OC in compliance of Government Circular dated 18.09.2017. Writ Petition therefore succeeds and the impugned order needs interference.
20. In view of the aforesaid observations and findings which prima facie emanate from the record, the impugned order dated 24.11.2015 is quashed and set aside. Resultantly Application No.DC1000698/2014 filed by the Petitioner – Society for deemed conveyance under Section 11(3) of the MOFA is allowed.
21. The Petitioner – Society shall submit a notarised Undertaking in lieu of Occupation Certificate in accordance with the Government Circular dated 18.09.2017 before the Competent Authority within a period of 2 weeks from today. Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 14 of 15
22. Once the above Undertaking is submitted the Competent Authority is directed by this Court to grant deemed conveyance in favour of the Petitioner – Society within a period of 2 weeks thereafter in term of its Application seeking deemed conveyance on all other requisite compliances in accordance with law.
23. Writ Petition is allowed and disposed in the above terms. [ MILIND N. JADHAV, J. ]
24. After this order was pronounced in open Court, Advocate for Respondent Nos.5(a) to 5(e) and 7 persuaded the Court to stay the above order for a period of four weeks from today to enable them to challenge the same in the Superior Court. The request made by the learned Advocate stands rejected for the reasons stated in the aforesaid order. [ MILIND N. JADHAV, J. ] Ajay Corrected / Modified order as per speaking to the minutes of order dated 18.07.2025. Corrected / Modified order as per speaking to the minutes of order dated 09.09.2025. 15 of 15