Bombay High Court
Rai Residency Pvt Ltd vs The Competent Authority And District ... on 1 October, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-AS:41970
WP8030-2025.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8030 OF 2025
Rai Residency Pvt. Ltd. ...Petitioner
Versus
1. The Competent Authority and District
Deputy Registrar, Co-operative Societies,
Thane
2. Dwarka Nagari Co-operative Housing
SANTOSH
SUBHASH Society Limited
KULKARNI
3. Jaya Purshottam Gaikwad
Digitally signed by
SANTOSH SUBHASH
KULKARNI 4. Pratibha Dashrath Mhatre
Date: 2025.10.01
20:14:09 +0530
5. Reshma Hemant Mali
6. Aarti Arvind Bhoir
7. Bharti Purshottam Gaikwad
8. Kriti Purshottam Gaikwad
9. Vaijanta Purshottam Gaikwad
10. Bhagwan Ramu Gaikwad
11. Manish Purshottam Gaikwad
12. Rahul Kishor Salvi
13. Santosh Kishor Salvi ...Respondents
Mr. Mayur Khandeparkar, a/w Mr. Bishwajeet Mukherjee, Ms.
Humera Syed and Mr. Omkar Mendarkar, for Petitioner.
Ms. Vrushali Raje, AGP for the State-Respondent No.1.
Mr. Shubham Thakur, for Respondent No.2.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 30th JULY, 2025
PRONOUNCED ON: 1st OCTOBER, 2025
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and, with the
consent of the learned Counsel for the parties, heard finally.
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2. This Petition under Article 227 of the Constitution of India
calls in question the legality, propriety, and correctness of an or-
der dated 29th April, 2025, passed by the District Deputy Regis-
trar, Co-operative Societies and the Competent Authority,
thereby granting a unilateral deemed conveyance certificate in
favor of Respondent No. 2 under the provisions of Section 11(4)
of the Maharashtra Ownership Flats (Regulation of the Promo-
tion of Construction, Sale, Management and Transfer) Act, 1963
("the MOFA, 1963") and also seeks to set aside the deed of con-
veyance dated 20th June, 2025, executed pursuant to the said
certificate.
3. The background facts necessary for the determination of
this petition can be stated, in brief, as under:
3.1 The Petitioner is a company incorporated under the Com-
panies Act, 1956. Respondent Nos.3 to 13 ("original owners")
were the owners of land being Survey No.82, Hissa No.5, admea-
suring 4219.37 sq. mtrs. situated at Village Tisgaon, Taluka
Kalyan, District Thane ("the larger land"). The original owners
executed a registered Development Agreement dated 23 rd Janu-
ary, 2004 in favor of the Petitioners, thereby granting develop-
ment rights in regard to the larger land. Pursuant thereto, the
Petitioner obtained permission from Kalyan Dombivli Municipal
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Corporation ("KDMC") and proposed to develop a layout
comprising of four buildings, namely Building Nos.1, 2, 3, and 4.
The Petitioner purchased and loaded TDR equivalent to 1944.30
sq. meters on Buildings Nos.2, 3, and 4. Building No.1 was to be
constructed at a later point in time and only permission in re-
spect of the plinth area of the said building was granted.
3.2 Since the year 2009, the Petitioner entered into Agree-
ments for Sale with the purchasers in accordance with the
provisions of MOFA, 1963 of the flats in Buildings Nos.2, 3, and
4. The Petitioner claims the aforesaid purchasers were aware,
inter alia, that the constructions of Building No.1 was to be
carried out by the Petitioner at a later point in time and,
accordingly, requisite clauses were incorporated in the
Agreement for Sale.
3.3 Dwarka Nagari Co-operative Housing Society Ltd. (R2) is a
registered Co-operative Society of the flat purchasers of
Buildings Nos.2, 3, and 4.
3.4 Respondent No.2 filed an application under Section 11 of
the MOFA, 1963 seeking a certificate of unilateral deemed
conveyance. The Petitioner resisted the application contending,
inter alia, that the layout in respect of the larger land consisted
of more than one society and construction of Building No.1 was
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yet incomplete. Therefore, Respondent No. 2 society was not
entitled to a deemed conveyance certificate in respect of the
area admeasuring 2718.51 sq. meters of land. The Petitioner
contended that the larger land was affected by W.W.C.
reservation to the extent of 900 sq. meters and unusable area of
400 sq. meters for FSI purposes and a further reservation for
RG being 15% of the gross plot area, equivalent to 437.90 sq.
meters. The Petitioner also contended that the prayer of Respon-
dent No.2 for deemed conveyance was not in consonance with
the Government Resolution dated 22nd June, 2018 issued by the
State Government to regulate the grant of deemed conveyance
where there were multiple societies in one layout.
3.5 The Competent Authority, after considering the documents
and architect's certificate dated 27th September, 2024, relied
upon by Respondent No.2, and the directives in the Government
Resolution dated 22nd June, 2018, was persuaded to allow the
application for a certificate of unilateral deemed conveyance.
The Competent Authority was of the view that in accordance
with the Government Resolution dated 22nd June, 2018, after
the layout remained underdeveloped, then the completed build-
ings in the said layout would get the area as per their FSI
consumption and Respondent No.2 cannot be non-suited on the
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ground that it had not claimed certificate for an appropriate
area and the layout was underdeveloped. The Competent Au-
thority thus granted unilateral deemed conveyance in favour of
Respondent No.2 for an area admeasuring 2751.09 sq. meters
out of 4280 sq. meters area of the larger land.
3.6 Pursuant to the said certificate dated 29 th April, 2025, a
unilateral deed of conveyance came to be executed and
registered on 20th June, 2025. By way of the amendment the
Petitioner has, therefore, sought the relief of setting aside the
said deed of conveyance also.
4. An affidavit-in-reply has been filed on behalf of respondent
No.2 to resist the prayers in the petition.
5. I have heard Mr. Mayur Khandeparkar, the learned
Counsel for the Petitioner, Mr. Shubham Thakur, the learned
Counsel for Respondent No.2, and Ms. Vrushali Raje, the
learned AGP for the State - Respondent No.1, at some length.
The learned Counsel for the parties took the Court through the
documents and material on record.
6. Mr. Khandeparkar, the learned Counsel for the Petitioner,
would urge that the impugned order suffers from manifest ille-
gality and, therefore, warrants interference in exercise of writ ju-
risdiction. Amplifying the submission, Mr. Khandeparkar
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would urge that the Competent Authority has ignored vital doc-
uments like the sanctioned plan, which indicates the area that
was available, after accounting for reservations. The
Competent Authority has completely misconstrued the net area,
which was available and granted deemed conveyance even for an
area which was in excess of the claim of Respondent No. 2. A
bare perusal of the sanctioned plan and comparing and con-
trasting the same with the impugned order would reveal that
the area for which deemed conveyance has been granted is far in
excess of the entitlement of Respondent No.2. In that process,
the Competent Authority, according to Mr. Khandeparkar,
completely ignored the directives issued by the State
Government in the Government Resolution dated 22nd June,
2018. The Competent Authority was bound to follow the said
directives. On this count alone, the impugned order deserves to
be quashed and set aside.
7. Mr. Khandeparkar would further urge that the
unsustainability of the impugned order can be gauged from the
fact that the Competent Authority has granted deemed con-
veyance in favour of Respondent No.2 in respect of an area
which is even in excess of the claim of Respondent No.2 in the
application. Cumulatively, the impugned order suffers from such
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grave infirmities as to warrant exercise of the supervisory
jurisdiction. Lest, the Petitioner would suffer grave and irre-
trievable prejudice.
8. To bolster up the submission that the directives in the
Government Resolution dated 22nd June, 2018, were binding on
the Competent Authority, Mr. Khandeparkar placed a very
strong reliance on the judgment of a learned Single Judge of
this Court in the case of Prestige Garden A-1 CHSL vs. State of
Maharashtra1.
9. Per contra, Mr. Thakur, the learned Counsel for Respon-
dent No. 2, would urge that none of the grounds sought to be
canvassed by Mr. Khandeparkar, vitiates the impugned order.
At best, according to Mr. Thakur, the Petitioner is raising an
issue of entitlement for a particular area. The extent of the area
for which a deemed conveyance is ordered to be issued, is a
matter which touches upon the proprietary title of the parties.
This Court has consistently held that the issue of title and the
extent of the area for which a deemed conveyance can be
granted are the matters within the province of the Civil Court.
The Competent Authority is neither competent nor vested
with the jurisdiction to decide the question of title.
1 WP/7668/2023 dtd.28/3/2024.
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10. In order to lend support to the aforesaid submission, Mr.
Thakur placed a strong reliance on a judgment of a learned Sin-
gle Judge of this Court in the case of Nahalchand Laloochand
Pvt. Ltd. and ors. vs. Shri Panchamrut CHS Ltd. and ors. 2,
wherein it was enunciated that if the area ultimately conveyed
under a deemed conveyance allegedly exceeds what was
stipulated in the agreements or the sanctioned plan, the
promoter's recourse is to file a civil suit. Therefore, the im-
pugned order does not warrant any interference, submitted Mr.
Thakur.
11. Ms. Raje, the learned AGP for the State - Respondent No.1,
supplemented the submissions of Mr. Thakur and urged that
the grant of a certificate of deemed conveyance does not
preclude an aggrieved party from invoking the plenary
jurisdiction of the Civil Court.
12. The aforesaid submissions now fall for consideration.
13. To begin with, it is necessary to note that there is not
much controversy over the character of the contesting parties,
and their rights and liabilities under the regime enshrined by
MOFA, 1963. It is not controverted that the Petitioner is, "a
promoter" within the meaning of Section 2(c) of the MOFA, 1963.
2 WP/2222/2025, dtd.24/2/2025.
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Nor there is a dispute over the fact that the Petitioner had sold
the flats in Building Nos.2, 3 and 4 to various persons, who
joined together to form Respondent No.2 Society. Thus, the
jural relationship between the Petitioner, as the promoter, and
Respondent No.2 as the co-operative Society of the flat pur-
chasers, in the context of the rights and liabilities under MOFA,
1963, is rather incontrovertible.
14. In addition to the general liabilities of the promoter, under
Section 4(1) of the MOFA, 1963, the promoter is enjoined to exe-
cute a registered Agreement for Sale in favour of the flat pur-
chasers in the form prescribed under MOFA, 1963. Under Sec-
tion 10 of the MOFA, 1963, it is the obligation of the promoter to
form a cooperative society or a company representing the flat
purchasers. If the promoter fails to take steps to register the so-
ciety, the Competent Authority constituted under Section 5A of
MOFA, 1963, upon an application from the flat purchasers is
empowered to direct the Registrar, Cooperative Societies to regis-
ter the society.
15. Then comes Section 11 of the MOFA, 1963, which enjoins
the promoter to take steps to complete his title and convey to the
Society or the Company or the Association of flat takers, his
right, title and interest in the land and building and execute all
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requisite documents in accordance with the agreement executed
under Section 4 of the MOFA, 1963. If no period for the
execution of the conveyance is agreed upon, the promoter shall
execute the conveyance within the prescribed period. Rule 9 of
the MOFA, 1963 provides that if no period for conveying the title
is agreed upon, the promoter shall execute the conveyance
within four months from the date on which the Society or
Company is registered or the Association of flat takers is duly
constituted.
16. The salience of the provisions contained in Section 11 of
the MOFA, 1963 lies in the legislative redressal in the event of
default on the part of the promoter to convey his right, title and
interest in the land and building to the society. As the promoters
did not convey their right, title, and interest in the land and
building and resorted to various subterfuges thereby defeating
the rights of the flat purchasers, the legislature introduced the
device of deemed conveyance. The justification for the same
stems from the fact that the promoter has already received the
consideration and transferred his right and interest in the flats
and what remained to be executed was a conveyance. Thus, the
Competent Authority has been invested with the power to issue
a certificate to the Registrar of Assurances certifying that it was
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a fit case for enforcing unilateral execution of conveyance deed
conveying the right, title and interest of the promoter in the land
and building in favor of the Society/Company as a deemed
conveyance.
17. Sub-section (4) of Section 11 is required to be read in con-
junction with sub-section (1) of Section 11 as the very obligation
cast on the promoter under sub-section (1) of Section 11,
namely, to convey his right, title and interest in the land and
building is to be enforced by executing a unilateral deed of con-
veyance, nothing more and nothing less. Under sub-section (5)
of Section 11 the Registrar of Assurances, after issuing sum-
mons to the promoter to show cause why such unilateral instru-
ment should not be registered as deemed conveyance and pro-
viding a reasonable opportunity of hearing to the promoter and
the Society/Company may register the instrument as "deemed
conveyance".
18. The MOFA, 1963 and the Rules, 1964 also contain
provisions to regulate the manner of hearing and the decision-
making process so as to bring it in conformity with fundamental
principles of judicial process. The competent authority thus
discharges quasi-judicial function. In the case at hand, there is
no qualm over the fact that an efficacious opportunity of
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hearing was given to the parties by the Competent Authority.
The challenge to the impugned order essentially revolves around
the determination of the area, to which Respondent No.2 was
entitled to.
19. That brings to the fore the nature of the power exercised
by the Competent Authority under Section 11 of MOFA, 1963. In
a line of decisions commencing from a judgment of a learned
Single Judge in the case of Mazda Construction Company and
others vs. Sultanabad Darshan CHS Ltd. and ors. 3 this Court
has consistently held that what has to be conveyed, even by a
deemed conveyance, is the right, title and interest of the pro-
moter in the land and building. The Competent Authority, in ef-
fect, performs the duty, which was to be discharged by the pro-
moter. The Competent Authority does not decide the question of
title. The issue of certificate of unilateral deemed conveyance
does not preclude an aggrieved party from instituting a suit to
establish the title or demonstrate that the Society is not entitled
to the area for which an unilateral deemed conveyance has been
ordered.
20. In the case of Arunkumar H. Shah HUF vs Avon Arcade
Premises Co-operative Society Limited and ors.4, the Supreme
3 2012 SCC Online Bom. 1266.
4 2025 SCC online SC 828.
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Court gave its imprimatur to the aforesaid line of decisions in
observing that, the Competent Authority cannot conclusively
and finally decide the question of title. Therefore, notwithstand-
ing the order under sub-section (4) of Section 11, the aggrieved
parties can always maintain a civil suit for establishing their
rights.
21. It is this well recognized principle, which was the fulcrum
of the submission of Mr. Thakur that, the real challenge to the
impugned order is in regard to the extent of area of land to
which respondent No.2 Society is entitled to, and, therefore, the
petition does not deserve to be countenanced.
22. There can be no duality of opinion on the proposition that
the Competent Authority does not decide the question of title
and if any person is aggrieved by a determination by the
Competent Authority, which impinges upon his propriety rights,
the appropriate remedy is to approach the Civil Court for sub-
stantive reliefs. However, the question as to whether the Compe-
tent Authority has ordered the issue of certificate for execution
of unilateral deed of conveyance with regard to the very obliga-
tion of the promoter, namely, his right, title and interest in the
land and building, can be legitimately questioned and inquired
into.
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23. On the aforesaid anvil readverting to the facts of the case,
it is pertinent to note that, the parties are not at issue over the
total area of the subject plot, i.e. 4219.37 sq. meters. Out of the
said total area of 4219.37 sq. meters, area under W.W.C. was
900 sq. meters and the area not used for FSI was 400 sq.
meters. Thus, the net plot area in the sanctioned building plan,
(exhibit B-1 Page 35A) is shown 2919.37 sq. meters. It is also
imperative to note, out of the said area, 15% area equivalent to
437.90 sq. meters, was earmarked for RG, and, thus, the net
permissible built-up area shown in the sanctioned building plan
is 2481.47 sq. meters.
24. Indubitably, four buildings were to be developed. There
does not seem to be controversy as to the plinth area of Building
No.1, which was yet to be completed, i.e. 261.49 sq. meters.
(Paragraph 4 of the Rejoinder filed one behalf of respondent
No.2 before the Competent Authority, and the Architect's Area
Certificate (Exhibit-I) to the petition.) The situation which thus
emerges is that, the Petitioner and Respondent No.2 were in
unison on the net plot area that is 2919.37 sq. meters, the addi-
tion for FSI purpose (TDR) i.e. 1592.03 sq. meters and the plinth
area of Building No.1 i.e. 261.49 sq. meters.
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25. At this juncture, a reference to the Government
Resolution dated 22nd June, 2018 becomes necessary. In the
context of the procedure to be followed by the Competent
Authority where there are more than one societies, in a layout,
and the conveyance is sought by one of the societies, the rele-
vant clauses of the Government Resolution dated 22nd June,
2018 read as under:
"(B) A procedure to be adopted in respect of issuing Deemed
Conveyance Certificate by the District Dy. Registrar, Co-opera-
tive Societies/Jt. Registrar, Co-operative Societies (CIDCO) and
Competent Authority:
.......
(iv) While passing Deemed Conveyance Order and Certificate,
District Dy. Registrar, Co-operative Societies/Jr. Registrar, Co-
operatives (CIDCO) and Competent Authority should consider
following matter and then pass the order:
(1) If there are many buildings on one plot and have a separate
co-operative society of each building and if construction of
some of them is incomplete then while making deemed con-
veyance of completed building, undivided share of occupancy
right in the proportion of construction on the proportionate
area of the construction of the building of such society or
ground coverage or plinth area, similarly open space, common
services and facilities, roads should be given.
(2) While making deemed conveyance in respect of the build-
ings in the layout where T.D.R. is utilized, their conveyance
should be made according to plinth and appurtenant area.
(3) If there is more than one society in one layout and out of
them only one society has made such application, similarly
other societies are not cooperating for conducting
measurement of the land of the applicant society then the
District Deputy Registrar, Co-operative Societies, and Compe-
tent Authority shall suggest the applicant society to conduct
the measurement according to the approved plan from the Ar-
chitect on the panel of the Competent Authority who approved
the constructions plans of the concerned society and submit
the report regarding area of the society."
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26. In the case of Prestige Garden (supra), a learned Single
Judge of this Court construed the purpose and import of the
aforesaid directives in the following words.
"34. The guidelines specifically deal with the situation where
there are many buildings on one plot and have separate
cooperative societies and when the construction of some of
them is incomplete. The purport is to grant conveyance of the
land required to sustain the constructed structure along with
the proportionate area in common amenities is required to be
conveyed. Apart from the Petitioner Society, the layout consists
of other independent societies. The guidelines prescribe that in
event there are more than one society and other societies are
not co-operating for conducting the measurement of land of
applicant society, then the Competent Authority can get the
measurements carried out from an architect on the panel of
Competent Authority and can get the report submitted regard-
ing the area of the applicant society. The Competent Authority
is bound by the guidelines issued by the G.R of 22nd June,
2018, which guidelines have not been followed in the present
case."
27. Evidently, in the case at hand, the Competent Authority,
didn't follow the directives to conduct the measurement
according to the approved plan from the Architect on the panel
of the Competent Authority and obtain a report regarding the
area of the society. Since, Buildings No.2, 3 and 4 of respondent
No.2 Society were constructed by utilizing the TDR, the
ascertainment of the plinth and appurtenant area of Building
Nos.2, 3 and 4 was also imperative under clause (2) extracted
above.
28. It is necessary to note how the Competent Authority ap-
proached the issue. In the impugned order, the Competent Au-
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thority has referred to the aforesaid Government Resolution,
and observed that if the layout is underdeveloped, then the
completed buildings in the same layout will get the area as per
their FSI consumption and, thus, the applicant society was
entitled to get area on pro-rata basis. No other reason is evinci-
ble from the impugned order.
29. It would be contextually relevant to note the manner in
which Respondent No.2 Society had fashioned its claim. In
paragraph 4 of the rejoinder, the respondent No.2 asserted that
if out of the total plot area of 4280 sq. meters., the area of
W.W.C. 900 sq. meters and unusable area of 400 sq. meters, for
FSI purpose, and the plinth area of Building No.1 i.e. 261.49 sq.
meters were deducted, the Respondent No.2 would be entitled to
2718.51 sq. meters area and that was the precise area for which
the application for deemed conveyance was filed.
30. The aforesaid claim of Respondent No.2 Society is ex facie
erroneous. Though W.W.C. reservation of 900 sq. meters and
unusable FSI area of 400 sq. meteres have been accounted for,
the Respondent No.2 Society failed to deduct for 15% RG out of
the net plot area of 2919.37 sq. meters.
31. The fallacy in the impugned order becomes explicitly clear
if these deducted areas are added to the area i.e. 2751.09 sq.
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meters, for which unilateral deed of conveyance has been
executed. If W.W.C. reservation of 900 sq. meters, non-usable
FSI of 400 sq. meters and the plinth area of Building No.1 i.e.
261.49 sq. meters are added to the conveyed area i.e. 2751.09
sq. meters, the aggregate area comes to 4312.58 sq. meters, far
in excess of the agreed plot area of 4219.37 sq. meters. In
addition RG of 437.90 sq. meters will be required to be
accounted for. Consequently, Building No.1, with a plinth area
of 261.49 sq. meters, will be left with no land to sustain it as an
independent building/society.
32. In the aforesaid view of the matter, the impugned order
passed by the Competent Authority appears to be manifestly il-
legal. As the Competent Authority did not follow the directives
contained in the Government Resolution dated 22 nd June, 2018
and was, thus, deprived of the benefit of the opinion of the Ar-
chitect, in the context of the controversy between the parties,
and went on to grant a certificate for unilateral deemed con-
veyance in excess of the entitlement of Respondent No.2 Society,
the impugned order cannot be sustained. Therefore, the im-
pugned order deserves to be quashed and set aside and conse-
quently the Deed of Conveyance is also required to be cancelled
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and the application remitted to the Competent Authority for
afresh determination.
33. Hence, the following order:
:ORDER:
(i) The petition stands partly allowed.
(ii) The impugned order granting certificate of unilateral
deemed conveyance and the certificate of deemed
conveyance dated 29th April, 2025 issued by the
Competent Authority, stand quashed and set aside.
(iii) Deed of unilateral deemed conveyance dated 20th June,
2025 also stands cancelled.
(iv) Application No.722 of 2024 under Section 11 of the
MOFA, 1963 is remitted back to the Competent Authority
(R1) for afresh decision, in the light of the directives in
the Government Resolution dated 22nd June, 2018 and
aforesaid observations.
(v) The parties shall appear before the Competent Authority
on 15th October, 2025.
(vii) The Competent Authority shall provide an opportunity to
the parties to file further affidavits/documents and
advance submissions, and decide the application as
expeditiously as possible.
(vi) Rule made absolute in the aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
