Bombay High Court
Maki Homi Chibber Nee Maki Modi vs State Of Maharashtra Thr Prin. Sec. ... on 3 November, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:46628
-WP-4408-2025.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4408 OF 2025
Maki Homi Chibber Nee Maki Modi
Adult, Indian Inhabitant, aged 58 years
Through Constituted Attorney
Dilip S. Bendugade
Age 58 years
Partner of M/s Om Shri Sai
Constructions, Having its office at 108,
Param Tower, Survewadi, Thane (West) ..Petitioner
Versus
1. State of Maharashtra,
Through its Principal Secretary,
Housing Department,
Mantralaya, Mumbai - 400 032.
2. District Deputy Registrar,
Cooperative Societies, Thane,
Competent Authority,
appointed under the MOFA, 1963,
having its office at First Floor, Gaondevi
Vegetable Market Building,
Gokhale Road, Thane (West) - 400 602.
3. Model Colony Cooperative Housing Society
ARUN
RAMCHANDRA
SANKPAL
Limited, claiming to be a Cooperative Housing
Society registered under the Maharashtra
Digitally signed
by ARUN
Cooperative Societies Act, 1966 claiming to have
RAMCHANDRA
SANKPAL its address at Survey No. 231, Ward No. 77,
Date: 2025.11.03
19:50:19 +0530 Model Colony, Shastri Nagar, Village Majiwade,
Pokharan Road No.1,
Thane (West) 400 606.
4. Mangibai Govind Varatha
1/44
::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:22:23 :::
-WP-4408-2025.DOC
5. Raghunath Govind Varatha
Both Adults, Indian Inhabitants,
Both shown to have their address at
Survey No. 231, Ward No. 77,
Shastrinagar, Pokharan Road No.1,
Thane (West) - 400 606.
4A. Mina Randhya Dunde
4B. Pandurang Randhya Dunde
4C. Bhangubai Randhya Dunde
4D. Chima Randhya Dunde
4E. Gulab Vishawas Thakur
4F. Bhaskar Soma Konde
4G. Janu Soma Konde
4H. Raju Soma Konde
5A. Anandibai Raghunath Vartha
5B. Ashok Raghunath Vartha
5C. Santosh Raghunath Vartha
5D. Kamal Raju Kode
All residing at Kode Chawl, Shastri Nagar,
Phokran Road No.1, Post J.K. Gram,
Thane - 400 606.
6. M/s Shreeram Construction Company
Through Amrutlal Lalji Patel and
Mukesh Amrutlal Patel, shown to have their
office at 304, Doshiwadi,
Agra Road, Ghatkopar,
Mumbai 400 086.
7. Ramaadhar Munai Mourya,
Adult, Indian Inhabitant,
Shown to have his address at
Survey No. 231, Ward No. 77,
Shastrinagar, Pokharan Road No.1.
Thane (West) - 400 606. ...Respondents
Mr. Sandesh Patil, with Anish Karande, Tatsat Gor, Shyam Singh,
Chintan Shah and Satchit Gor, i/b Kapil N. Gor, for the
Petitioners.
Mr. A.I. Patel, Addl G.P., with Kavita N. Solunke, Addl GP, for
Respondent Nos. 1 and 2-State.
2/44
::: Uploaded on - 03/11/2025 ::: Downloaded on - 03/11/2025 21:22:23 :::
-WP-4408-2025.DOC
Mr. Vineet Naik, Senior Advocate, i/b S. Anchan, for Respondent
No.3.
Mr. S.C. Mangle, i/b Yogesh Keny, for Respondent Nos. 4 and 5.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 4th AUGUST 2025
PRONOUNCED ON: 3rd NOVEMBER 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith and, with the consent of
the learned Counsel for the parties, heard finally.
2. By this Petition under Article 227 of the Constitution of India, the
Petitioner takes exception to an order dated 14 th June 2022, passed by
the District Deputy Registrar, Cooperative Societies, Thane and the
Competent Authority, thereby granting Unilateral Deemed Conveyance
Certificate in respect of the premises admeasuring 5436.80 sq mtrs
("the subject premises") out of the total area of 2 Hectors 32 Ares and
71 Points (23,271.00 sq mtrs) ("the larger property") situated at Shastri
Nagar, Village Majiwade, Thane (West), under Section 11 of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 ("the MOFA,
1963").
3. Though the Petition arises out of an order passed by the
Competent Authority in exercise of its limited jurisdiction under Section
11 of the MOFA, 1963, yet, the facts of the case are required to be noted
-WP-4408-2025.DOC
in a little detail as there are multiple facets to the litigation with various
proceedings before the Civil Courts, Revenue Authorities and the
Authorities under the Maharashtra Cooperative Societies Act, 1960 and
the Maharashtra Slum Areas (Improvement, Clearance and
Redevelopment) Act, 1971 ("the Slum Act").
4. Late Manekji Modi, the father of the Petitioner, claimed to have
acquired the larger property from one Mr. Gulvantram in the year 1948.
His name was mutated to the Record of Rights of the larger property.
After his demise the names of Mrs. Nargis Manekji Modi, the mother of
the Petitioner, and Dina Manekji Modi, the Petitioner's sister, and the
Petitioner, were mutated to the Record of Rights of the larger property
vide Mutation Entry No. 1205. The Petitioner now claims to be the sole
surviving heir of late Manekji Modi.
5. Mangibai Govind Varatha and Raghunath Govind Varatha, the
deceased Respondent Nos. 4 and 5, claimed to be the tenants of a plot
of land admeasuring 6500 sq yards out of the land bearing Survey No.
231, the larger property.
6. The deceased Respondent Nos. 4 and 5 had purportedly executed
a registered Lease Deed dated 17th December, 1981 of the subject
premises for a term of 98 years, commencing from 1 st January 1982, in
favour of M/s Shreeram Construction Company through late Amrutlal
Lalji Patel. On the strength of the said Lease Deed the name of M/s
-WP-4408-2025.DOC
Shreeram Construction Company came to be recorded in the other
rights column of the larger property vide Mutation Entry No. 1889.
7. A series of the proceedings before the Revenue Authorities
ensued. In an Application preferred by the Petitioner, the Sub Divisional
Officer ("SDO"), Thane by an order dated 25 th August 2007 cancelled
the Mutation Entry No. 1889 and ordered the deletion of the name of
Respondent No. 6 from the Record of Rights.
8. In the Second Appeal, the Additional Collector, Thane, by an
order dated 3rd January 2017, set aside the order passed by the SDO
and restored the name of the Respondent No.6 to the Record of Rights.
9. A Revision Application was preferred before the Additional
Commissioner, Konkan Division. By an order dated 20th August 2019,
the Additional Commissioner, Konkan Division, allowed the Revision
Application and set aside the Additional Collector's order and,
resultantly, the name of Respondent No. 6 came to be deleted from the
other rights column.
10. A further Revision before the State Government is sub judice.
11. In the meanwhile the Respondent No. 6 constructed building Nos.
A to K, consisting of more than 150 tenements over the subject
premises. The Respondent No. 6 had allegedly sold the tenements by
executing Agreements in favour of the purchasers. Those Agreements
were purportedly executed in accordance with the provisions contained
-WP-4408-2025.DOC
in the MOFA, 1963. Some of the first purchasers, in turn, have further
transferred the tenements in favour of the successive purchasers.
Evidently, the Respondent No. 6 did not discharge the obligations under
the MOFA, 1963.
12. A majority of the flat purchasers initially instituted a Suit for
declaration and injunction before the Civil Court at Thane on the
premise that the flat purchasers along with the flat purchasers in "K"
building, (who had formed a cooperative housing society) had acquired
title over the respective flats and the subject premises by way of adverse
possession. It was the claim of the 108 flat purchasers-Plaintiffs in SCS
No. 450 of 2018 that Mr. Amrutlal Patel, the Proprietor of M/s
Shreeram Construction Company, (R6), was in actual open, peaceful
and hostile possession of the subject premises and since acquisition of
the respective flats, the Plaintiffs were also in adverse possession of the
respective flats and the subject premises to the knowledge of the owners
of the subject premises.
13. In the intervening period, the occupants of the flats in building
"A" to "J" formed and registered Model Colony Cooperative Housing
Society, the Respondent No.3. The said society was registered on 20 th
March 2019. After registration, the Respondent No.3 addressed a notice
to the Petitioner, Nargis Modi and Dina Modi; the owners, Mangibai
Varatha and Raghunath Varatha, the deceased Respondent Nos. 4 and 5;
-WP-4408-2025.DOC
the lessors, and M/s Shreeram Construction Company, the Respondent
No. 6; the Promoter, to execute a conveyance of the subject premises in
favour of the society.
14. Vide Reply dated 2nd September 2020, the Petitioner and the Co-
owners contested the claim of the Respondent No.3 on multiple grounds
including that the deceased Respondent Nos. 4 and 5 had no right, title
and interest in the subject premises and, therefore, were not entitled in
law to execute a lease in favour of the Respondent No.6. Reference was
made to the various proceedings between the parties. It was, inter alia,
contended that the Chief Executive Officer, SRA, has already issued a
Notification under Section 3C(1) of the Slum Act, 1971, on 26 th March
2019, declaring an area admeasuring 16408.79 sq mtrs out of the total
area of 23,880.00 sq mtrs of Survey No. 231 as "Slum Rehabilitation
Area". The Petitioner had entered into a Development Agreement with
M/s Om Shri Sai Construction for the redevelopment of the larger
property.
15. In the backdrop of the aforesaid litigative history, the Respondent
No.3 filed an Application before the Competent Authority under Section
11 of the MOFA, 1963 for issue of a certificate for Unilateral Deemed
Conveyance. The Respondent No.3 sought a certificate to the effect that
the Deed of Assignment of leasehold rights in respect of the subject
-WP-4408-2025.DOC
premises admeasuring 5436.80 sq mtrs be executed in favour of the
Respondent No.3.
16. The Competent Authority issued notice 19 th April 2022 to the
Opponents; posting the Application for hearing on 5 th May 2022. On
that date, noting that the Respondents, including the Petitioner
(Respondent No.3 therein), were absent, the Competent Authority
directed issue of public notices returnable on 24 th May 2022. Public
notices were published in the newspapers on 6 th May 2022. As none
appeared before the Competent Authority on 24 th May 2022, the
Competent Authority was persuaded to close the Application for orders
ex parte. By the impugned order, the Competent Authority granted a
Certificate of Unilateral Deemed Conveyance in respect of the subject
premises.
17. The Petitioner claims that he was not served with the notice of
hearing of the Application before the Competent Authority. The
Petitioner became aware of the passing of the order in the month of
March 2025 and after gathering the documents and information
approached the Registrar of Assurance requesting him not to register
the Deed of Unilateral Deemed Conveyance. Yet, the Registrar
registered the Deed of Unilateral Deemed Conveyance post-haste
despite an intimation that the Petition was sub-judice before this Court.
-WP-4408-2025.DOC
18. The Petitioner assails the impugned order and the instrument
executed pursuant thereto principally on the ground that the impugned
order came to be passed in flagrant violation of the fundamental
principles of natural justice. The Competent Authority (R2) has passed
the impugned order in a mechanical manner without satisfying itself
that the prerequisite for the grant of certificate of the Unilateral
Deemed Conveyance have been fulfilled. In fact, the Competent
Authority (R2) did not verify that there was no registered Agreement
for Sale executed by the purported Promoter (R6) in favour of any of
the flat purchasers. The deceased Respondent Nos. 4 and 5, the alleged
lessors, had no right and authority to execute the Lease Deed in favour
of the Respondent No. 6. The Agreements in question relied upon by the
Respondent No.3-society were not the Agreements covered by the
MOFA, 1963. The Respondent No.3-society had, in fact, played a fraud
on the Competent Authority as a false declaration was made that no
litigation was pending in respect of the subject land, though 108
members of the Respondent No. 3-society had already instituted a Suit
for declaration of title by adverse possession.
19. The Respondent No.3-society has controverted the averments in
the Petition by filing an Affidavit in Reply. The challenges sought to be
raised by the Petitioner were stated to be untenable on facts and in law.
The Petitioner had never challenged the registered Lease Deed executed
-WP-4408-2025.DOC
by the deceased Respondent Nos. 4 and 5 in favour of the Respondent
No. 6.
20. The Respondent No.3 has also assailed the legality and validity of
the declaration made by the CEO, SRA under Section 3C(1) of the Slum
Act. A reference is made to various proceedings initiated by the flat
purchasers to protect their legitimate rights, which were sought to be
deprived by unlawful declaration of the subject premises as the slum. In
any event, the impugned order having been passed in exercise of the
statutory power, there was no scope for interference in exercise of the
writ jurisdiction.
21. I have heard Mr. Sandesh Patil, the learned Counsel for the
Petitioner, Mr Vineet Naik, the learned Senior Advocate, for the
Respondent No.-3-society, Mr. S.C. Mangle, the learned Counsel for the
Respondent Nos. 4 and 5, and Mr. A.I. Patel, the learned Addl GP, for the
Respondent Nos. 1 and 2. With the assistance of the learned Counsel for
the parties, I have also perused the material on record, including the
documents annexed to the Application filed by the Respondent No.3
before the Competent Authority, and the pleadings and the documents
tendered before this Court.
22. Mr. Sandesh Patil, the learned Counsel for the Petitioner,
submitted that the impugned order and the instruments registered
pursuant thereto are required to be quashed and set aside for not
-WP-4408-2025.DOC
adhering to the basic rules of natural justice. Amplifying the submission
Mr. Patil would urge, the Competent Authority (R2) was discharging
quasi-judicial function and it was incumbent upon the Competent
Authority to give an effective opportunity of hearing to the Petitioner,
who is undoubtedly the owner of the subject premises. The Competent
Authority proceeded to grant certificate of Unilateral Deemed
Conveyance without satisfying itself that the notice of the Application
was duly served upon the Petitioner.
23. Inviting attention of the Court to the roznama of the proceeding
before the Competent Authority, Mr. Patil would submit that, on the
very first date of hearing, the Competent Authority directed issue of
notice by paper publication, without recording that the notice was duly
served. Moreover, the notices were published in the newspapers which
had no circulation in the area where the Petitioner resides. On the next
date, the Competent Authority closed the proceeding for orders ex
parte. On this count alone, the impugned order of grant of certificate
deserves to be interfered with.
24. Mr. Patil would urge that there was gross suppression of facts on
the part of the Respondent No.3-society. Nay a positive false statement
was made that no litigation in respect of the subject premises was
pending before any Court, apart from the proceeding before the
Revenue Authorities. The Respondent No.3-society was fully cognizant
-WP-4408-2025.DOC
that its 108 members had instituted a civil suit seeking a declaration of
title by adverse possession. This constitutes a clear fraud on the part of
the Respondent No.3.
25. On the merits of the matter, Mr. Patil would urge even a copy of
the Agreement for Sale executed by the Promoter in favour of the flat
purchasers under Section 4 of the MOFA, 1963, which is a primary
document, was not placed before the Competent Authority. Inviting
attention of the Court to the copy of the purported model Agreement
annexed to the Application, Mr. Patil would urge the said document
appeared to a Sale Deed to which the Promoter was not even a party.
Nor the fact that a declaration under Section 3C(1) of the Slum Act was
made by the CEO, SRA, was brought to the notice of the Competent
Authority. On the contrary, after the grant of certificate of Unilateral
Deemed Conveyance, the 108 members of the Respondent No.3-society
unconditionally withdrew the Suit.
26. In the backdrop of these glaring facts, impugned order, whereby
the Competent Authority has granted a certificate of Unilateral Deemed
Conveyance in a mechanical manner, without posing unto itself the
questions which are germane for the determination of such Application,
deserves to be quashed and set aside, submitted Mr. Patil.
27. To buttress these submissions, Mr. Patil placed reliance on
judgments in the cases of Kashish Park Reality Pvt Ltd Vs State of
-WP-4408-2025.DOC
Maharashtra,1 K.G. Associates Vs Registrar, Coop Societies, 2 Jagshi
Jethabhai Chheda Vs District Deputy Registrar of Coop Societies, 3
Mazda Construction Co Vs Sultanabad Darshan CHS Ltd,4 Arunkumar
H. Shah HUF Vs Avon Arcade Premises Coop Society Ltd, 5 Zainul
Abedin Yusufali Massawawala Vs Competent Authority District, 6 Swastik
Promoters & Developers Vs District Deputy Registrar of Coop Societies, 7
Indradas Kacharu Gaikar Vs Kalyan Dombivali Municipal Corpn 8 and
Umadevi Nambiar Vs Thamarasseri Roman Catholic Diocese.9
28. Per contra, Mr. Naik, the learned Senior Advocate for the
Respondent Nos. 3-society, submitted that the challenge to the
impugned order is devoid of substance. The contention that the
Petitioner did not get an effective opportunity of hearing is a subterfuge.
The Petitioner deliberately chose not to appear despite service of notice.
The Competent Authority had published the notice in the newspapers,
yet, the Petitioner did not appear. The falsity of the claim of Petitioner
that notice was not served on the Petitioner is borne out by the fact that
the notice issued by the Respondent No.3-society, prior to filing of the
1 2020 SCC OnLine Bom 11644.
2 2023 SCC OnLine Bom 2132.
3 2024 SCC OnLine Bom 3758.
4 2012 SCC OnLine Bom 1266.
5 2025 SCC OnLine SC 828.
6 2016 SCC OnLine Bom 6028.
7 2025 SCC OnLine Bom 256.
8 2025 SCC OnLine Bom 219.
9 (2022) 7 SCC 90.
-WP-4408-2025.DOC
Application under Section 11, was served on the Petitioner on the very
same address. Thus, the Petitioner cannot be heard to urge that the
notice was not served on the Petitioner.
29. In any event, having regard to the nature of the proceedings
before the Competent Authority and the limited enquiry envisaged by
the provisions of the MOFA, 1963, the bogie of breach of principles of
natural justice cannot be countenanced to interfere with a legitimate
order passed by the Competent Authority. To this end, Mr. Naik placed
reliance on a judgment of the Supreme Court in the case of State of
Uttar Pradesh Vs Sudhir Kumar Singh & Ors, 10 wherein it was inter alia
enunciated the breach of the audi alteram partem rule cannot, by itself,
without more, lead to the conclusion that prejudice is thereby caused.
30. Mr. Naik submitted that, even otherwise, the essential challenge
of the Petitioner is premised on the professed title of the Petitioner over
the subject premises. Mr. Naik would submit, with a degree of
vehemence that, by a catena of decisions, it is well-settled that the
question of title cannot be gone into by the Competent Authority
exercising the power under Section 11 of the MOFA, 1963. A party
aggrieved by the the order passed by the Competent Authority has to
workout his remedies before the Civil Court.
31. Mr. Naik placed a very strong reliance on the judgment of the
Supreme Court in the case of Arunkumar H Shah HUF (Supra) wherein
10 (2021) 19 SCC 706.
-WP-4408-2025.DOC
the Supreme Court postulated in no uncertain terms that the Competent
Authority cannot conclusively and finally decide the question of title
and notwithstanding the order under sub-Section (4) of Section 11 of
the MOFA, 1963, aggrieved parties can always maintain a civil suit for
establishing their rights.
32. As a second limb of the aforesaid submission, Mr. Naik would
urge, even the case of the Petitioner premised on the title over the
subject premises is inherently weak. Apart from the revenue
proceedings, for over 40 years, no proceeding has been instituted by the
Petitioner and other co-owners challenging the registered Lease Deed in
respect of the subject premises in favour of the Respondent No. 6
executed by the deceased Respondent Nos. 4 and 5.
33. In the absence of the challenge to the said registered instrument
on the basis of the orders passed by the Revenue Authorities, in the
mutation proceeding, the challenge to the status of the Respondent
No.6, as the promoter, lacks substance.
34. At any rate, the question of legality and validity of the antecedent
documents would be alien to the enquiry before the Competent
Authority. To bolster up the aforesaid submission, Mr. Naik placed
reliance on the judgments of this Court in the cases of Blue Heaven
Coop Housing Society Ltd Vs Punit Construction Company Pvt Ltd &
Ors11 and New Manoday Cooperative Housing Society Limited Vs Uday
11 Writ Petition No. 2455 of 2023, decided on 21st November 2024.
-WP-4408-2025.DOC
Madhavrao Jagtap & Ors12 wherein this Court, in the facts of the
respective cases, held that the Competent Authority had overstepped its
jurisdiction by unnecessarily going into title disputes while considering
an Application for grant of certificate of Unilateral Deemed Conveyance
under Section 11 of the MOFA, 1993. Reliance was also placed on a
judgment of this Court in the case of Acme Enterprises and Anr Vs
Deputy Registrar, Cooperative Societies & Ors.13
35. Mr. Naik further submit that the contentions of the Petitioner that
the Respondent No.3-society had played a fraud on the Competent
Authority and made a false declaration as regards pendency of the
litigation is against the weight of the material on the record. Laying
emphasis on the declaration made by the Respondent No.3-society, Mr.
Naik submitted that the society had made a factually correct statement
that no other litigation was pending by or against the society in respect
of the subject premises. The Special Civil Suit was instituted by the flat
purchasers who subsequently became members of the Respondent No.3-
society. However, the fact remained that the society was not a party to
any pending litigation.
36. Lastly, Mr. Naik would urge that the flat purchasers, who
subsequently became member of the Respondent No.3-society had been
left in the lurch for over three decades. Pursuant to the impugned order
12 Writ Petition No. 1421 of 2024 and other connected matters dated 30 th
April 2024.
13 2023 SCC OnLine Bom 1102.
-WP-4408-2025.DOC
only the leasehold rights of the Respondent No.3 have been conveyed in
favour of the Respondent No.3-society. Having regard to the object of
the MOFA, 1963 when only such leasehold rights in the subject premises
have been conveyed, the impugned order does not warrant interference
in exercise of the writ jurisdiction, submitted Mr. Naik.
37. I have given anxious consideration to the rival submissions
canvassed across the bar. In the run of the mill cases often the challenge
to the order grating certificate of Unilateral Deemed Conveyance
revolves around the question of title to the subject land and building or
to the extent of entitlement of the Applicant before the Competent
Authority. Such challenge is determined on the basis of the principles
which have been fairly crystallized. In the case at hand, as noted above,
the litigation has a chequered history before various forums, yet, the
core controversy revolves around the remit of the jurisdiction exercised
by the Competent Authority and the legality and correctness of
procedure adopted by the Competent Authority in arriving at the
impugned decision.
38. To begin with, it may be apposite to keep in view the object of the
MOFA, 1963. The MOFA, 1963 came to be enacted with the avowed
object of regulation of the promotion of the construction, sale and
management and transfer of flats taken on ownership basis as it was
found that consequent to actuate shortage of housing in the several
-WP-4408-2025.DOC
areas of the State sundry abuses and malpractices were being indulged
in and difficulties were faced in sale, management and transfer of flats
taken on ownership basis. Under Section 4 of the MOFA, 1963 an
obligation is cast on the promoter to enter into a written agreement for
sale with each of the persons who are to take the flats in the building to
be constructed by the promoter, in the prescribed format. Sub-section
(1A) of Section 4 provides that such agreement shall contain the
particulars as specified in Clause (a) and to such agreement copies of
the documents specified in Clause (b) shall be attached. Such an
agreement is required to be registered under the provisions of
Registration Act, 1908.
39. Section 4A of the MOFA, 1963, primarily insulates the purchasers
from the consequences which entail the non-registration of an
agreement under the Registration Act, 1908. Section 10 enjoins the
promoter to take steps for registration of the organization of the persons
who take flats as a cooperative society, or as the case may be, as a
company. However, it does not affect the right of the promoter to
dispose of the remaining flats in accordance with the provisions of the
said Act.
40. Section 11, which is the pivot of the protective regime, mandates
that the promoter shall take all necessary steps to complete his title and
convey to the such organization his right, title and interest in the land
-WP-4408-2025.DOC
and the building, and execute all relevant documents therefor in
accordance with the agreement executed under Section 4 of the MOFA,
1963.
41. If there is no Agreement as to the period within which the
conveyance is to be executed, the Promoter is obligated to execute the
conveyance within the prescribed period. If the promoter fails to
execute the conveyance in favour of such organisation within the
prescribed period, a right is conferred on the members of such
organisation to make an application in writing to the Competent
Authority, constituted under Section 5A, accompanied by true copies of
the registered Agreement for sale and all other relevant documents for
issuing a certificate to the effect that such organisation is entitled to get
a Unilateral Deemed Conveyance executed in its favour and also have it
registered. Under sub-Section (4) of Section 11 of the MOFA, 1963, the
competent authority after making such inquiry as it deems necessary
and after verifying authenticity of the documents submitted and after
giving the promoter a reasonable opportunity of being heard, if satisfied
that it is a fit case for issue of such certificate, shall issue a certificate to
the Registrar of Assurances certifying that it is a fit case for enforcing
unilateral execution of conveyance thereby conveying the right, title
and interest of the promoter in the land and building in favour of such
organization, as deemed conveyance.
-WP-4408-2025.DOC
42. Sub-Section (5) of Section 11 of the MOFA, 1963, casts a duty on
the Registration Officer to issue summons to the Promoter to show
cause why such Unilateral Deemed Conveyance should not be registered
as "Deemed Conveyance" and after giving the Promoter and the
Applicant reasonable opportunity of being heard and upon being
satisfied that it was a fit case for Unilateral Conveyance, register that
instrument as "Deemed Conveyance".
43. A conjoint reading of the relevant provisions of MOFA, 1963 and
the MOFA Rules, would indicate that the promoter is statutorily
enjoined to first enter into a Agreement for Sale of the flats in a
building, register it and then take steps to form an organization of the
flat purchasers and after completion of development, execute an
instrument conveying his right, title and interest in the land and
building in accordance with the Agreement executed with the flat
purchasers, within the time stipulated in the such Agreements or if no
time is stipulated, then within four months of the organisation having
been registered or constituted.
44. The general reluctance, refusal or neglect on the part of the
promoters to discharge the obligation to execute the conveyance, made
the legislature to step in and enforce the obligation by empowering the
competent authority to certify the justifiability of the deemed
conveyance. The competent authority is thus entrusted with the
-WP-4408-2025.DOC
responsibility to enforce the obligation of the promoter. From this
standpoint, only the agency which executes the conveyance, in favour of
the organization of purchasers, to which they are legitimately entitled
to, stands substituted as the promoter disables himself from discharging
the obligation, either by refusal or neglect.
45. The competent authority is, however, required to follow
fundamental principles of judicial process. Upon verification of the
authenticity of the documents and after furnishing a reasonable
opportunity of hearing to the promoter, it must arrive at a satisfaction
that a case for execution and registration of deemed conveyance is
made out.
46. In arriving at the conclusion as to whether a case for grant of
Unilateral Deemed Conveyance Certificate is made out, the Competent
Authority has to follow summary procedure. The remit of the enquiry of
the Competent Authority is confined to the questions as to whether
there is an Agreement within the contemplation of Section 4 of the
MOFA, 1963, whether the Promoter has committed default in conveying
his right, title and interest in the land and building in favour of the
society of flat purchasers within the stipulated or prescribed period and,
thereby failed to perform his obligation under Section 11 of the MOFA,
1963, and once these conditions are satisfied, grant a certificate for
Unilateral Deemed Conveyance. The Competent Authority is, however,
-WP-4408-2025.DOC
neither competent nor expected to delve into the question of title over
the subject land.
47. In the case of Arunkumar H Shah, HUF (Supra) the Supreme
Court expounded the nature and import of the proceeding before the
Competent Authority, as under:
"18. Thus, sub-section (1) of Section 11 contains the
obligation of the promoter to convey title in respect of the
land and the building developed by him. Sub-section (3) of
Section 11 gives a remedy to a cooperative society or a
company formed under Section 10 or the association of
apartment owners, as the case may be, to apply to the
competent authority appointed under Section 5A for issuing a
certificate that the said society or the company, as the case
may be, is entitled to have unilateral deemed conveyance
executed in their favour and have it registered. This provision
has been enacted to ensure that a speedy remedy is available
to the flat purchasers for enforcing the promoter's obligation
under sub-section (1) of Section 11. The MOFA has been
enacted with the object of protecting the flat purchasers.
19. The procedure for dealing with applications made under
sub-section (3) of Section 11 has been laid down in the MOFA
Rules. Rule 11(2) provides for the competent authority to
issue a notice of the application to the promoter. Even the
form of application under Section 11(3) has been prescribed
by the MOFA Rules. Under Rule 13(3), the opponent to whom
a notice is issued is entitled to file a written statement. Rule
13(4) permits the production of documents. Sub-rule (5) of
Rule 13 provides for the procedure for the hearing of the
application. It provides that on receiving a written statement
-WP-4408-2025.DOC
of the opponent, the applicant shall prove the contents of the
application and also deal with the contention of the defence.
However, it is specifically provided that no cross-examination
of any of the parties shall be permitted. Clause (c) of sub-rule
(5) of Rule 13 provides that the outer limit for passing an
order on a Section 11 application is six months. It provides
that the competent authority shall make such enquiry as may
be deemed necessary, and after verifying the authenticity of
the documents submitted by the parties and after hearing
them, the competent authority shall pass an order. The
requirement to comply with the principles of natural justice is
also incorporated in clause (c). Considering the nature of the
power conferred on the competent authority, it follows that
while passing orders on the application under Section 11(3),
the competent authority must record reasons.
20. It is undoubtedly true that quasi-judicial powers have
been conferred upon the competent authority while dealing
with applications under Section 11(3) of the MOFA. However,
proceedings before the competent authority under Section
11(3) are of summary nature, as can be seen from the MOFA
Rules. Even cross-examination of the parties is not
permissible. There is an absolute prohibition under Rule
13(5) on cross-examination of parties. Thus, it follows that
the competent authority, while following the summary
procedure, cannot conclusively and finally decide the
questions of title. Therefore, notwithstanding the order made
under sub-section (4) of section 11, aggrieved parties can
always file a civil suit for establishing their rights.
(emphasis supplied)
-WP-4408-2025.DOC
48. The Supreme Court further concluded that the Competent
Authority while following the summary procedure cannot conclusively
and finally decide the question of title. Therefore, notwithstanding the
order under sub-Section (4) of Section 11, the aggrieved parties can
always maintain a civil suit for establishing their rights. The provisions
of Section 11 are for the benefit of the flat purchasers. In writ
jurisdiction, the Court should not interfere with the order granting
deemed conveyance unless the same is manifestly illegal. The writ Court
should generally be slow in interfering with such orders. The reason is
that, notwithstanding the order under Section 11(4), the remedy of
aggrieved parties to file a civil suit remains open.
49. In the case of Acme Enterprises (Supra) this Court, after
adverting to a large body of precedents, summarised the legal position
as under:
"30. From the above statutory provisions and enunciation, the
position which emerges can be summarized as under. The
authority to grant deemed conveyance is conditioned and
controlled by the primary obligation of the promoter to convey
to the organization of flat purchasers right, title and interest in
the land and buildings, in accordance with the agreement
executed under Section 4. Competent authority cannot
convey more than what the promoter had agreed to convey
under the agreement executed under Section 4. What
competent authority is thus required to consider is, the extent
of the obligation incurred by the promoter, whether the
obligation to execute the conveyance became enforceable and
-WP-4408-2025.DOC
whether the promoter committed default in, or otherwise
disabled himself from, executing the conveyance.
31. The enquiry is thus of limited nature. The competent
authority cannot delve into the aspects of title. Nor the finding
of the competent authority precludes a party from agitating
the grievance as to the entitlement of the organization of
purchasers to have the conveyance, before the Civil Court.
The remit of enquiry by the competent authority is, thus,
whether the conditions stipulated for enforcement of the
obligation to execute the conveyance have been satisfied and,
if yes, order an unilateral deemed conveyance."
(emphasis supplied)
50. In the case of Blue Heaven Coop Housing Society (Supra) a
learned Single Judge of this Court, reiterated the limited nature of the
jurisdiction of the Competent Authority in the following words:
"62. Once the non performance of obligations as envisaged by
the MOFA is established, the Competent Authority is mandated
to comply with the promoter's obligations. It is not open for the
Competent Authority in the limited extent of jurisdiction to
delve into the validity of the documents executed between the
parties including the issue of title and to reject the application of
deemed conveyance on the ground of validity of the documents.
63. The conspectus of the findings of Competent Authority is
that the Agreement of Assignment executed on 15th May 2003
being an unregistered unstamped notarised document and not
as per the transfer scheme of CIDCO did not create any rights in
the Respondent No.1 or the flat purchasers. The documents
submitted are incomplete documents containing blanks. Despite
-WP-4408-2025.DOC
notice being issued by planning authority for vacating the
dilapidated premises during the period from 20th July 2016 to
3rd August 2016, 26 flat purchasers agreement were executed
for a sum of Rs.1,00,000/- only, and more than 30
tenements/commercial shops are in the name of directors of the
Respondent No.1-developer. There was suppression of the fact of
demolition of building and conveyance under Section 11(1) of
MOFA can be of the land and building. The building is not in
existence and the authenticity of the agreements is pending
before the civil Court.
64. The rejection of the application by arriving at the above
findings, in my view, goes way beyond the jurisdiction of
Competent Authority. It was not necessary to consider the
validity of Agreement of Assignment dated 15th May, 2003 as all
permissions such as the commencement certificate and the
occupancy certificate were issued in name of the Owners and
having caused the construction, the Owners were Promoters
under MOFA and bound by the flat purchasers agreement. For
the same reason the finding of the Competent Authority that
there is no privity of contract between the owners and the flat
purchasers cannot be accepted.
65. The right of Respondent No.1 to enter into flat purchasers
agreement was not an issue to be considered by the Competent
Authority when it noticed that the permissions were obtained by
the Owners making them Promoters. The flat purchasers cannot
be caught in the cross-fire between the developer and the
Owners and be deprived of their entitlement to deemed
conveyance where non compliance of MOFA obligations is
established. Learned Single Judge of this Court has in New
Manoday CHS Ltd (Supra) held that if any person claims that
-WP-4408-2025.DOC
promoter is not the owner in respect of the land on which
building is constructed, it is for that person to institute civil suit
and establish his rights to the land. Pendency of such title
disputes cannot be a ground for not conveying land under
Section 11 by the Competent Authority. The authenticity and
validity of the Agreement is an issue to be decided by the Civil
Court. The manner of sale of the flats could not be gone into by
the Competent Authority under Section 11 of MOFA. The
Competent Authority has ventured in the title dispute between
the parties by holding that the development agreement is not
validly executed and therefore no rights accrue to the flat
purchasers. The rights of the flat purchasers flow from the
statutory obligations under MOFA which includes the owner as
promoter."
(emphasis supplied)
51. In New Manoday Cooperative Housing Society Limited (Supra)
another learned Single Judge of this Court, emphasised the remit of the
enquiry by the Competent Authority as under:
"31. In my view, the Competent Authority has erred in going
into the title disputes raised by Nalini Jadhav/her heirs while
deciding application under Section 11 of MOFA. Under
Section 11, jurisdiction of Competent Authority is in
extremely narrow compass. The limited remit of enquiry
before the Competent Authority is only to convey what the
promoter fails to convey as per the agreements executed
under Section 4 of MOFA. Under Section 11, an obligation is
imposed on the Promoter to take necessary steps to complete
his title and to convey to the Society, his right, title and
interest in the land in accordance with the agreement
executed under Section 4. Sub-section (3) of Section 11 is a
-WP-4408-2025.DOC
special provision empowering the Competent Authority to do
something which the promoter fails to do despite the
mandate of Section 11(1). Thus, the role of Competent
Authority under Section 11(3) is limited to conveying what is
agreed upon in agreement executed under Section 4. While
doing so, the Competent Authority is not supposed to
entertain, go into or consider title disputes between the
original owners/promoters. If there is an agreement of flat
purchase under Section 4 of MOFA and the agreement
contains obligation on the part of the Promoter to convey his
right, title and interest in the land in favour of the Society, the
Competent Authority has no option but to issue a certificate
of deemed conveyance as per Section 4 Agreement.
32. In the present case, the Competent Authority has
overstepped its jurisdiction by unnecessarily going into title
disputes between various persons claiming to be the heirs of
Madhavrao Jagtap. The Civil Court will determine rights of
persons to succeed to the estate of Madhavrao Jagtap. The
Competent Authority neither has jurisdiction nor is supposed
to go into such title disputes between the parties. All that the
Competent Authority was required to do in the present case
was to simply read covenants of agreement executed with the
flat purchasers by the promoter under Section 4 of MOFA.
Failure to perform obligation by the promoter in the present
case under Section 11(1) is writ large. Once this position was
obtaining before the Competent Authority, there was no scope
for the authority to reject Society's application for issuance of
certificate of unilateral deemed conveyance. It ought to have
ignored pendency of title dispute between various persons
claiming to be the heirs of Madhavrao Jagtap."
(emphasis supplied)
-WP-4408-2025.DOC
52. On the aforesaid touchstone, reverting to the facts of the case, the
challenge to the impugned order passed by the Competent Authority is
required to be appraised in two parts. First, the non-adherence to the
principles of natural justice.
53. It is the case of the Petitioner that notice of the Application was
not served on the Petitioner. Incontrovertibly, the Petitioner did not
appear before the Competent Authority and, therefore, the Competent
Authority proceeded to pass the impugned order ex parte. The crucial
question that crops up for consideration is, whether the Competent
Authority was justified in proceeding ex parte.
54. The facts which bear upon the aforesaid question are few and
rather clear. The Competent Authority issued notice of the Application
on 19th April 2022 and posted the Application for hearing on 5 th May
2022. The roznama of the proceeding indicates that the Application was
heard on two dates only, i.e., 5th May 2022 and 24th May 2022. On 5th
May 2022, the Competent Authority recorded that the Respondents
were absent and, thus, public notice was ordered to be issued,
returnable on 24th May 2022. The material on record indicates that
public notices were published in the newspaper dated 6 th May 2022. On
the next date, 24th May 2022, the Competent Authority after recording
that the Respondents were absent in spite of public notice, closed the
matter for orders ex parte.
-WP-4408-2025.DOC
55. What is conspicuous by its absence in the roznama of the
proceeding dated 5th May 2022 is that, the notices were served on the
Respondents, especially the Petitioner. The roznama simply records that
the Respondents were absent. The endeavour of Mr. Naik to urge that
since the notice issued on behalf of the society was served on the
Petitioner on the very same address, on which the notice of the
Application was sent, it must be presumed the notice of the Application
was duly served on the Petitioner, takes the matter in the realm of
surmises and conjectures. It was incumbent upon the Competent
Authority to satisfy itself and record that the notice of the Application
was duly served on the Petitioner. In the absence of clear proof of
service of notice on the Petitioner, the Competent Authority could not
have proceeded to decide the Application ex parte, on the ground that
the notices were published in the newspapers.
56. It is imperative to note that Rule 13 of the MOFA Rules, 1964,
enjoins the Competent Authority to issue notice to the opponents and
maintain a record thereof. When the notices were published in the
newspaper which do not have wide circulation in the area where the
proposed noticee ordinarily resides and, there is no proof of either
actual service of notice or refusal or avoidance on the part of the
noticee to accept the service of notice, the exercise of proceeding ahead
with the enquiry is fraught with the risk of the decision making process
-WP-4408-2025.DOC
suffering from the vice of breach of most elementary rule of audi
alteram partem.
57. The submission of Mr. Naik that in the facts of the case no
prejudice as such can be said to have been caused to the Petitioner,
cannot be readily acceded to. In the case of Sudhir Kumar Singh
(Supra), the Supreme Court, after an analysis of the previous
precedents has enunciated that the breach of the audi alteram partem
rule cannot, by itself, without more, lead to the conclusion that
prejudice is thereby caused. Where procedural and/or substantive
provisions of law embody the principles of natural justice, their
infraction per se does not lead to invalidity of the orders passed. Here
again, prejudice must be caused to the litigant, except in the case of a
mandatory provision of law which is conceived not only in individual
interest, but also in public interest.
58. However, in the facts of the case, as elaborated above, especially
the chequered history of litigation, the denial of opportunity of hearing
to the Petitioner to bring to the notice of the Competent Authority the
various facets of the claim including the previous proceedings, cannot
be said to be inconsequential or immaterial. It cannot be said that the
Petitioner was disinterested or indifferent. When the society had given
notice demanding execution of conveyance, the Petitioner and other co-
-WP-4408-2025.DOC
owner had given an elaborate response and refuted the claim of the
society.
59. In a sense, the Competent Authority was also deprived of the
benefit of full disclosure of the facts which bear upon the determination
of the Application for grant of certificate of Unilateral Deemed
Conveyance. In my considered view, what accentuates situation is the
fact that, on the very second date of hearing of the Application, the
Competent Authority decided to reserve the matter for ex parte order. It
is not the case that there was a clear proof of either service of notice on
the Petitioner or refusal or avoidance to accept the notice. In the
absence thereof, the Competent Authority committed a grave
procedural irregularity in deciding to proceed ex parte against the
Respondents, including the Petitioner.
60. This leads me to the question as to whether the Competent
Authority had kept in view the factors which were germane for the
determination of the Application. Undoubtedly, the Competent
Authority was not expected to delve into the question of title. However,
the mere fact that the Respondents did not appear, or for that matter
the Competent Authority, decided to proceed ex parte did not
necessarily imply that the Competent Authority was not enjoined to
pose unto itself the relevant questions for grant of a certificate of
Unilateral Deemed Conveyance.
-WP-4408-2025.DOC
61. First and foremost, it is imperative to note the impugned order
singularly lacks consideration as to the what was the exact nature of the
obligation the Respondent No.6-Promoter had undertaken. Nor does it
indicate that the Competent Authority considered the nature of the
right, title and interest of the Respondent No. 6 in the subject land.
62. As noted above, sub-Section (4) of Section 11 provides that the
Competent Authority shall make such enquiry as deemed necessary and
verify the authenticity of the documents submitted and, thereafter, upon
being satisfied that it is a fit case for issue of Unilateral Deemed
Conveyance Certificate, shall issue such certificate. The primary
document which the Competent Authority was required to consider was
the MOFA Agreement executed by the Promoter in favour of the
individual flat purchasers. A perusal of the Application before the
Competent Authority would indicate that, in the list annexed to the said
Application, at Item 6, model Agreement executed with the Developer
was included. A bare perusal of the said document at (pages 10 to 23 of
the Application) would indicate that it was not an Agreement executed
by the Respondent No.6 in favour of the flat purchasers. It appeared to
be an Agreement executed by one of the flat purchasers in favour
another person thereby conveying the right, title and interest in Unit
No. B/49. The perfunctory nature of the consideration by the
Competent Authority becomes evident from the fact that the impugned
-WP-4408-2025.DOC
order does not even refer to the MOFA Agreement executed by the
Promoter in favour of any of the flat purchasers, let apart the
ascertainment of the obligations under the said Agreement which the
Competent Authority professed to enforce by granting a certificate of
Unilateral Deemed Conveyance.
63. Mr. Naik attempted to salvage the position by inviting the
attention of the Court to the Sale Deeds executed by Amrutlal Patel in
favour of flat purchasers on 16 th December 1983. It was submitted that
those documents were impounded under Section 33 of the Maharashtra
Stamps Act and thus the defect stood cured.
64. In the light of the view this Court is persuaded to take, it may not
be appropriate to comment on the nature and character of those Sale
Deeds. Those Sale Deeds simply record that the Units have been sold for
a consideration of Rs.12,000/-. Suffice to note the Agreement does not
incorporate the necessary particulars prescribed under Section 4(1)(a)
of the MOFA, 1963, though it contains a recital that the said Sale Deed
would be governed by the provisions of MOFA, 1963.
65. Moreover, it does not appear that those Sale Deeds were placed
before the Competent Authority. Nor those Sale Deeds disclose the
nature of the interest of the Respondent No. 6 which eventually was
transferred by way of Unilateral Deemed Conveyance.
-WP-4408-2025.DOC
66. It would be contextually relevant to note that 108 flat purchasers
had instituted the Suit seeking a declaration that they had become
owners of the respective Units and the subject premises by way of
adverse possession. The broad case of the flat purchasers was that
initially the Respondent No. 6 had been in adverse possession of the
subject premises and, after the execution of the instruments in favour of
the Plaintiffs, they were also in adverse possession of the respective
units. A case of tacking of adverse possession was sought to be put
forth.
67. Evidently, the Competent Authority was not apprised of the
pendency of the said Suit. Whether the statement made on behalf of the
society that no litigation by or against the society in respect of the
subject premises was pending was fraudulent or otherwise need not be
answered definitively.
68. The submission of Mr. Naik that since the society was not party to
the Suit instituted by 108 flat purchasers seeking declaration of title by
way of adverse possession, the pendency of the said Suit or for that
matter the stand of the individual flat purchasers in the said Suit was of
no consequence, cannot be acceded to unreservedly. It can hardly be
disputed that a majority of those very persons became the members of
the Respondent No.3-society. The stand of those persons thus cannot be
said to be wholly immaterial or inconsequential.
-WP-4408-2025.DOC
69. At this juncture the nature of a cooperative society and especially
its relations qua the members who form the society after its
incorporation, assumes critical salience. Under Section 36 of the MCS
Act 1960, the registration of a society shall render it a body corporate by
name under which it is registered, with perpetual succession and a
common seal, and with power to acquire, hold and dispose of property,
to enter into contracts, to institute and defend suits and other legal
proceedings and to do all such things as are necessary for the purpose
for which it is constituted.
70. With the registration under the Act of 1960, a society becomes a
corporate body. In the case of Daman Singh & Ors Vs State of Punjab &
Ors,14 a Constitution Bench of the Supreme Court had an occasion to
consider the juridical status of a cooperative society under the Punjab
Cooperative Societies Act, 1961. Section 30 of the Punjab Cooperative
Societies Act, 1961 also conferred status of a body corporate on every
society registered thereunder. In the context of the submission that the
cooperative societies were not the corporations within the meaning of
Article 31-A(1)(c) of the Constitution of India, the Supreme Court
examined as to what a "corporation" means and comprehends ordinarily
and in the scheme of the Constitution. Thereafter the Supreme Court
ruled that there cannot be the slightest of doubt that a cooperative
society is a corporation as commonly understood.
14 (1985) 2 SCC 670.
-WP-4408-2025.DOC
71. In the case of Daman Singh (Supra) the Supreme Court also
expounded the position in law as to what happens to the person who
formed themselves into a society or subsequently became members of
the society. The Supreme Court enunciated that once a person becomes a
member of a cooperative society, he looses his individuality qua the
society and has no independent rights except those given to him by
statute and by-laws. He must act and speak through the society or rather,
the society alone can act and speak for him qua rights or duties of the
society as a body.
72. In the light of the aforesaid juridical status of a cooperative
society and the relation of the individual members qua the society, the
nature of the underlying dispute between the parties assumes critical
salience. It can hardly be contested that the rights and obligations of the
parties have their genesis in the Agreements for Sale executed by
Respondent No.6 in favour of individual flat purchasers. By executing
those Agreements, the society claimed, the Respondent No.6 subjected
himself to the regime of MOFA.
73. In the aforesaid view of the matter, non-disclosure of the
pendency of the Suit wherein 108 unit purchasers had claimed
ownership of title by way of adverse possession cannot be said to be of
no significance.
-WP-4408-2025.DOC
74. Whether the disclosure of the pendency of such Suit, where 108
flat purchasers claimed that they were holding the units and the subject
premises adversely to the owners would have influenced the decision of
the Competent Authority is a different matter. Whether the Competent
Authority had before it all the relevant material is the moot question.
75. It also does not appear that the Competent Authority had the
benefit of the Lease Agreement. What the Competent Authority was
expected to consider, albeit without delving into the legality and validity
of the Lease Agreement, was whether under the Lease Agreement, the
Respondent No. 6 was conferred with the rights which the Respondent
No. 6 was further obligated to convey to the society of flat purchasers.
76. From a perusal of the Lease Agreement, on which emphasis was
laid by Mr. Naik, it becomes evident that the lessees had the right
construct the building for residential and commercial purpose, at their
own risk and costs. However, two clauses of the Lease Agreement
deserve to be taken into account.
77. Clauses 5 and 10 of the Lease Agreement read thus:
"5. That the lessees shall have not right to transfer his
leasehold rights on the land hereby demised. The Lessors
expressly grant the right to erect the residential and/or
commercial buildings on the leasehold properties and sell
out the same to the prospective purchasers.
10. That on expiry or on termination of this lease and/or
on removal thereof in writing, the lessees shall immediately
-WP-4408-2025.DOC
give vacant and peaceful possession to the lessors or such
person or persons they may appoint in this behalf over the
land hereby demised and over all constructions,
improvements, groves, orchard, trees or tanks whether
constructed or planted by the lessee or existing and in such
condition as may be no worse than he originally received it.
The lessee shall not be entitled to any compensation for any
construction and such improvement which he may have
made in or upon the demised land. In case the lessee hold
over without renewal of the lease in writing or illegally
continuous their possession after termination of this lease,
they shall be liable to pay damages for use and occupation
to the lessors at the rate of Rs.100/- per day for each day of
their trespass."
78. Clause 5 of the Lease Agreement recorded that the lessee shall
have no right to transfer his leasehold rights of the land thereby
demised, though the lessee was expressly granted right to erect
residential or commercial building on the leasehold property and the
lease out the same to the prospective purchasers. Under Clause 10, the
lessee agreed to deliver vacant and peaceful possession of the subject
land to the lessor, and that the lessee was not entitled to any
compensation for construction or improvement which he might have
made in or upon the demised land.
79. The question as to whether the Respondent No.6 could have
conveyed the leasehold rights in the subject premises in the face of a
clear interdict against the transfer of the leasehold rights, was also
required to be examined, if eventually the Deemed Conveyance was
-WP-4408-2025.DOC
granted in the nature of the assignment of the leasehold rights. Again,
the absence of these documents, before the Competent Authority
disabled it from examining the said issue.
80. On the aspect of the registration of the instrument pursuant to
the certificate granted by the Competent Authority, prima facie, it
appears that the Registration Officer did not comply with the mandate
contained in sub-Section (5) of the Section 11 of MOFA, 1963. The duty
and the nature of enquiry to be conducted by the Registration Officer in
the light of the provisions contained in sub-Section (5) of Section 11
was expounded by the Supreme Court in the case of Arunkumar H.
Shah HUF (Surpa) as under:
"22. Now, we deal with the scope of powers of the registration
officer under the Registration Act, 1908 (for short, 'the 1908
Act') under sub-section (5) of Section 11. As provided in sub-
section (4) of Section 11, a certificate regarding the entitlement
of the applicant to deemed conveyance has to be issued by the
competent authority to the appropriate registration officer under
the 1908 Act. After receiving the certificate, the registration
officer is required to issue a summons to the promoter to show
cause why such a unilateral instrument should not be registered
as a deemed conveyance. After giving an opportunity of being
heard to the promoter and after being satisfied that it was a fit
case for registration of a unilateral conveyance, the registration
officer can register the certificate as deemed conveyance. We
may make it clear that the power conferred on the registration
officer does not enable him to reopen or set aside the findings
recorded by the competent authority while passing an order of
-WP-4408-2025.DOC
grant of certificate. The registration officer is neither an
appellate authority nor a revisional authority.
23. The requirement of sub-section (5) of Section 11 has
been incorporated to enable the registering officer to give an
opportunity to the promoter, as the certificate issued by the
competent authority is a "unilateral certificate". In a given case,
there may be a statutory requirement of obtaining prior
permission or consent of an authority before the execution and
registration of a conveyance. The registering officer cannot
register the instrument unless such statutory consent/permission
is produced. Therefore, he can refuse to register the certificate
of deemed conveyance till the permission/consent is produced.
There may be a prohibitory order of a competent court
restraining the promoter from executing a conveyance. In such a
case, the certificate cannot be registered as a conveyance till the
restraint order is in force. Moreover, the registering officer must
be satisfied that the requirements, such as payment of stamp
duty and other procedural requirements under the 1908 Act, are
complied with. This is the limited scope of adjudication by the
registering officer under sub-section (5) of Section 11. The
registering officer has no power to sit in appeal over the order of
the competent authority while exercising the power under
Section 11(5). He has no power to go into the correctness or
otherwise of the order of the competent authority. He can refuse
registration only on the grounds indicated above. Thus, the
scope of the powers conferred on the registering officer is
limited as indicated above. This is the only way sub-sections (4)
and (5) of Section 11 of the MOFA can be harmoniously
construed."
(emphasis supplied)
-WP-4408-2025.DOC
81. In the case at hand, it appears that the Registration Officer was
informed by the Petitioner on 28 th March 2025 that the Petitioner had
preferred Writ Petition before this Court and, therefore, the instrument
may not be registered pursuant to the impugned order. In response
thereto, on 4th April 2025 the Registration Officer called upon the
addressee to produce true copies of the orders passed by the Court.
Surprisingly, the Deed of Unilateral Deemed Conveyance was executed
two days prior thereto, i.e., 2nd April 2025.
82. It is true, the Registration Officer has no authority to sit in Appeal
over the Competent Authority, while exercising power under Section
11(5). However, when the Registration Officer was intimated about the
challenge to the order passed by the Competent Authority and the
objection thereto, it was in the fitness of things for the Registration
Officer to give an opportunity of hearing to the Petitioner. Instead, on
4th April 2025 the objector was called upon to furnish certified copies of
the order passed by the Court whilst the instrument was already
executed and registered two days prior thereto.
83. Cumulatively, an inference becomes inescapable that the
impugned order was passed by the Competent Authority without
adhering to the fundamental principles of judicial process and providing
an effective opportunity of hearing to the Petitioner and also without
conducting an enquiry as envisaged under Section 11 (4) of MOFA 1963.
-WP-4408-2025.DOC
84. Resultantly, the impugned order passed by the Competent
Authority as well as the instrument of Unilateral Deemed Conveyance
are required to be quashed and set aside and the matter remitted back
to the Competent Authority for a fresh decision after providing an
effective opportunity of hearing to the parties.
85. Hence, the following order:
:ORDER:
(i) The Petition stands partly allowed,
(ii) The impugned order dated 14th June 2022
passed by the Competent Authority stands quashed
and set aside.
(iii) The Unilateral Deed of Deemed Conveyance
dated 2nd April 2025 also stands cancelled.
(iv) The Application for grant of Unilateral
Deemed Conveyance stands remitted back to the
Competent Authority for afresh decision in accordance
with law after providing an effective opportunity of
hearing to the parties.
(v) The parties shall appear before the
Competent Authority on 24th November 2025. The
Competent Authority is requested to make an
-WP-4408-2025.DOC
endeavour to hear and decide the Application as
expeditiously as possible.
(vi) By way of abundant caution, it is clarified
that the consideration was confined to test the legality
and correctness of the impugned order and the
Competent Authority shall not be influenced by any of
the observations hereinabove while deciding the
Application afresh.
(vii) All contentions of all the parties are expressly
kept open for consideration.
No costs.
[N. J. JAMADAR, J.]
