[Cites 8, Cited by 0]
Bombay High Court
Swastik Chambers Owners Co Op Soc Ltd vs The Competent Authority And District ... on 1 April, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15340
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13274 OF 2025
Swastik Chambers Owners' Cooperative
Society Limited, a cooperative society
duly registered under the provisions of
the Maharashtra Coop. Societies Act,
1960 bearing Registration No.BOM/
ATUL
W-M/GNL/O/913-1993 dtd. 26.7.1993,
GANESH registered office at 316, 3rd Floor,
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Swastik Chambers, C.S.T. Road,
Date: 2026.04.01
12:35:50 +0530 Chembur, Mumbai 400 071 ... Petitioner
Vs.
1. The Competent Authority & District
Deputy Registrar, Coop. Societies (II),
Eastern Suburban, Office at Room
No.201, 2nd Floor, Konkan Bhavan,
CBD Belapur, Navi Mumbai 400 614
2. The Corporate Park Business Premises
Coop. Society Limited, a cooperative
society duly registered under the
provisions of the Maharashtra Coop.
Societies Act, 1960 bearing Registration
No.MUM/DWM/M/GML/O/11406/
2016-17, dated 27.11.2016, registered
Office at "Corporate Park", V.N. Purav
Marg, Sion-Trombay Road, Chembur,
Mumbai 400 071.
3. Shree Corporate Park-II Premises Coop.
Society Limited, a cooperative society
registered under the provisions of
1
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the Maharashtra Coop. Societies Act,
1960 bearing Registration No.MUM/
WM/GNL/O/11480/2016-17, office
at Shree Corporate Park-II, V.N. Purav
Marg, Sion-Trombay Road, Chembur,
Mumbai - 400 071
4. Reliance Consultancy Services Pvt. Ltd.,
a company registered under Companies
Act, office at Sion-Trombay Road,
Chembur, Mumbai 400 071.
5. Reliance Industries Limited, a company
registered under Companies Act, office
at Sion-Trombay Road, Chembur,
Mumbai 400 071
6. Apte Amalgamations Ltd., a company
registered under Companies Act,
address at 24, B, Woodland, Peddar
Road, Mumbai 400 026
7. Loonkar Builders, a partnership firm,
through its partner Ramesh Shah,
address at Sidhachal Darshan,
Shop No.1, Seth Motisha Road,
Byculla, Mumbai 400 017
8. Summer-Villa Investments,
partnership firm, address at 201,
Commerce House, 104, Nagindas
Master Road, Fort, Mumbai 400 023
9. The Sub-Registrar of Assurances
(Class-II), Kurla (V), office at Ground
Floor, New Administrative Building,
R.C. Chemburkar Marg, Chembur,
Mumbai - 400 071.
10 The Executive Engineer, Building
Proposal, Eastern Suburban, Mumbai
2
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Municipal Corporation, Office at
Vikhroli (East), Mumbai 400 083
11. Ambedkar Bhavan, Swastik Mill
Compound, Address at Sion-Trombay
Road, Chembur, Mumbai 400 071
12. Dr. Prashant Sonavane (Dr. P.S. Sonavane)
holding post of District Deputy
Registrar, Cooperative II, Eastern
Suburbs, Mumbai & Competent
Authority u/s. 5A of MOFA, 1963 ... Respondents
Mr. Girish Godbole, Senior Advocate with Mr. N.N.
Bhadrashete, i/by Ms. Priyanka Bhadrashete for the
petitioner.
Mr. O.A. Chandurkar, Additional G.P. with Mr. Hamid
Mulla, AGP for respondent No.1-State.
Mr. Harish Pawar with Ms. Sonal Bhor for respondent
No.2.
Mr. D.R. Kawale for respondent No.10-MCGM.
Mr. Amrut Joshi i/by Mr. Santosh More for respondent
No.12.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 23, 2026.
PRONOUNCED ON : APRIL 1, 2026
JUDGMENT:
1. The present writ petition is filed under Articles 226 and 227
of the Constitution of India, whereby the petitioner seeks to
challenge the order dated 28 February 2020 passed by respondent
No.1 granting deemed conveyance in favour of respondent No.2,
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as also the conveyance deed dated 27 June 2022 executed
pursuant thereto.
2. The facts giving rise to the present petition, as set out by the
petitioner, may be stated in brief. Respondent No.6 was the owner
of a larger parcel of land admeasuring approximately 34,454
square meters. By an agreement dated 19 September 1983,
respondent No.6 granted development rights in favour of
respondent No.7 in respect of a portion of land admeasuring
5536.65 square meters. Further, by a decree dated 23 December
1983 passed in Suit No.2394 of 1983, respondent No.6 conferred
development rights to utilize 1,60,000 square feet FSI forming part
of the said larger property. Pursuant thereto, respondent No.7
constructed a building by utilizing the said FSI, disposed of the
units therein, and the petitioner society came to be registered on
26 July 1983. It is further the case of the petitioner that on 21
November 2016, respondent No.6 granted development rights in
favour of respondent No.8 to utilize 1,27,000 square feet FSI from
the larger plot. Respondent No.8 thereafter undertook construction
of buildings, sold units therein, and respondent No.2 society came
to be registered. Additionally, by utilizing TDR FSI admeasuring
5853 square meters, a building known as "Shree Corporate Park"
was constructed, in respect of which respondent No.3 society was
registered during the year 2016-2017. The petitioner asserts that
several other structures also exist on the said larger property,
belonging to respondent Nos.4, 5, and 11.
3. Respondent No.2 initially filed Application No.
DC/1004342/2018 on 7 March 2018 seeking deemed conveyance.
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The petitioner was not impleaded as a party to the said
proceedings. The record indicates that the application was heard
and was closed for orders on 8 August 2018. Subsequently,
respondent No.2 withdrew the said application on 3 October 2018.
Thereafter, on 14 November 2018, respondent No.2 preferred a
fresh application for deemed conveyance bearing No.
DC/1005457/2018, claiming entitlement over an area
admeasuring 17,449.75 square meters. Respondent No.1 issued
notice dated 30 November 2018 to the concerned parties;
however, no notice was served upon the petitioner. The Roznama
reflects that the matter was heard on 14 December 2018 and 24
December 2018, and the proceedings were closed for orders on 27
December 2018. It is further stated that respondent No.1 passed
an order dated 7 February 2019 granting deemed conveyance in
respect of an area admeasuring 9,274.23 square meters. The
petitioner contends that upon obtaining copies of the proceedings
under the Right to Information Act, it was revealed that, without
any fresh application or proceedings, respondent No.1 proceeded
to pass another order dated 28 February 2020, thereby granting
conveyance in respect of 17,449.75 square meters. The record
further indicates that, upon submission of the conveyance deed by
respondent No.2, respondent No.1 caused the same to be
registered on 27 June 2022 before respondent No.9. It is alleged
that respondent No.9 registered the said conveyance deed without
issuance of summons or notice. The petitioner states that it
received the relevant documents under the Right to Information
Act on 12 March 2025, pursuant to which the present writ petition
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has been filed.
4. The petitioner has impleaded respondent No.12 in his
individual capacity, alleging abuse of official position and
deliberate manipulation of the record. It is contended that
respondent No.12 passed the impugned order dated 28 February
2020 without even adverting to the earlier order dated 7 February
2019. According to the petitioner, the impugned order stands
vitiated by legal malice as well as personal mala fides attributable
to respondent No.12. It is further alleged that the impugned action
amounts to a clear case of fraud and manipulation of official
record by a statutory authority, who is an officer of the State. On
this premise, the petitioner seeks quashing of the impugned order
and further prays for issuance of appropriate directions to the
Secretary, Ministry of Cooperation, Government of Maharashtra, to
initiate departmental proceedings against respondent No.12, in
line with the principles enunciated in Harish Arora vs. Deputy
Registrar of Cooperative Societies and others , 2025 SCC OnLine
Bombay 2833, following the law laid down by the Supreme Court
in Union of India vs. K.K. Dhawan, (1993) 2 SCC 256.
5. Mr. Godbole, learned Senior Advocate appearing on behalf of
the petitioner, invited attention to the impugned order and
submitted that, despite respondent No.12 having earlier granted
deemed conveyance in respect of an area admeasuring 9,274.23
square meters, he subsequently entertained another architect's
certificate certifying the entitlement of respondent No.2 society to
an area admeasuring 18,784.75 square meters. It was contended
that the order dated 7 February 2019 had finally concluded the
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proceedings under Section 11 of the Maharashtra Ownership Flats
Act, 1963. Once such proceedings stood concluded, respondent
No.12 had no jurisdiction to consider any fresh architect's
certificate or to pass a further order of deemed conveyance in
continuation of the same proceedings. It was further submitted
that even after the production of the architect's certificate dated 26
August 2019, no notice was served upon the petitioner, and yet
respondent No.12 proceeded to issue a certificate in favour of
respondent No.2. Learned Senior Advocate further invited
attention to the recitals contained in the orders dated 7 February
2019 and 28 February 2020. It was submitted that a substantial
portion of the factual narration, the submissions of the parties, as
well as the observations and conclusions, are identical in both the
orders. However, in the latter order, while recording the
observations and conclusions, reference is made to the architect's
certificate dated 19 July 2019 issued by Aniket Mathavkar and the
architect's certificate dated 26 August 2019 issued by Vaishali
Bhavsar, and on that basis, the area admeasuring 17,449.75 square
meters came to be granted in favour of respondent No.2.
6. It was further submitted that the impugned order is vitiated
by malice in law. According to the petitioner, respondent No.12 has
committed a blatant fraud on the statute. The case, it is urged, is a
clear instance of manipulation of official record by a statutory
authority who has abused his position. It was submitted that
notwithstanding the fact that respondent No.12 has
superannuated, appropriate penal action is still warranted. A
direction is therefore sought against the State Government to
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examine the material on record and to take a decision, within a
stipulated period, as to whether a case is made out for initiation of
departmental proceedings under Rule 27(2)(b) of the Maharashtra
Civil Services (Pension) Rules, 1982. In support of the aforesaid
submissions, reliance was placed on the judgment of this Court in
Harish Arora vs. Deputy Registrar of Cooperative Societies and
others, 2025 SCC OnLine Bombay 2833, as well as on the
judgment of the Supreme Court in Union of India vs. K.K. Dhawan,
(1993) 2 SCC 256.
7. Learned Senior Advocate further relied upon the judgment of
the Division Bench of this Court in Jagshi Jethabhai Chheda and
Another vs. District Deputy Registrar of Cooperative Societies,
Mumbai and Others in Writ Petition No.12627 of 2024, decided on
3 December 2024, to contend that an order passed under Section
11(5) of the MOFA without issuance of notice to the concerned
society is unsustainable in law.
8. Per contra, Mr. Joshi, learned Advocate appearing on behalf
of respondent No.12, invited attention to the affidavit-in-reply filed
by respondent No.12, wherein an unconditional apology has been
tendered for the inadvertent error committed. It was submitted
that the petitioner never appeared before the authority despite
service of notice. According to respondent No.12, notice dated 30
November 2018 was issued to the petitioner by speed post, and the
matter was listed for hearing on 24 December 2018 and 27
December 2018, and thereafter closed for orders on 27 December
2018. It was further submitted that after the order dated 7
February 2019 granting deemed conveyance in respect of 9,274.23
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square meters, respondent No.2 submitted a fresh architect's
certificate, and upon consideration thereof, the impugned order
came to be passed in accordance with the entitlement of
respondent No.2. It was contended that non-reference to the
earlier order dated 7 February 2019 in the impugned order dated
28 February 2020 was purely inadvertent, for which an apology is
tendered.
9. Mr. Pawar, learned Advocate appearing on behalf of
respondent No.2, supported the impugned order and submitted
that the same is in accordance with law, inasmuch as the
entitlement of respondent No.2 has been correctly determined on
the basis of the subsequent architect's certificate.
10. Mr. Chandurkar, learned Additional Government Pleader,
placed on record the original file and pointed out that the roznama
of the proceedings has been maintained at two different places. It
was submitted that the petitioner failed to remain present before
respondent No.12 despite issuance of notice. It was therefore
submitted that appropriate orders be passed in accordance with
law.
REASONS AND ANALYSIS:
11. I have considered the rival submissions and I have also gone
through the material placed on record. The real issue is whether,
after passing the order dated 7 February 2019 in the deemed
conveyance proceedings, respondent No.12 could again enter into
the very same matter, consider a further architect's certificate, and
pass another order dated 28 February 2020 granting a larger area
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in favour of respondent No.2. In my view, once the matter was
finally decided on 7 February 2019, the authority had no power to
reopen it in the same proceedings and alter the result in a
substantial manner, unless the law specifically permitted it.
12. The submission of Mr. Godbole, learned Senior Advocate for
the petitioner, goes to the root of the matter. He has pointed out
that the first order dated 7 February 2019 had already granted
deemed conveyance in respect of 9,274.23 square meters. This
submission cannot be brushed aside lightly. The comparison
between the two orders is also important. From the material
placed before the Court, it appears that the recitals in the order
dated 7 February 2019 and the order dated 28 February 2020 are
largely the same. The factual background, the submissions, and
even the reasoning are substantially similar. Yet, in the later order,
a different architect's certificate dated 26 August 2019 has been
relied upon and the area has been enlarged. This shows that the
later order was not an independent order passed in a fresh and
lawful proceeding. It is more in the nature of modified version of
the earlier order. Such a course creates serious doubt about the
propriety of the exercise. A statutory authority cannot keep
modifying the judgment of a concluded proceeding by merely
changing the supporting certificate.
13. Mr. Joshi, learned Advocate for respondent No.12, has stated
that respondent No.12 has tendered an unconditional apology for
the inadvertent mistake. That submission cannot cure the legal
defect. An apology may be relevant on the question of personal
conduct, but it does not validate an order that is passed without
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jurisdiction or without following the required procedure. If the first
order had already finally disposed of the proceedings, then the
later order cannot survive only because the officer accepts that he
made a mistake. Such exercise of power is still an exercise without
authority if the law did not permit it in the first place.
14. The explanation that the petitioner never remained present
also does not answer the main objection. Even if the petitioner had
remained absent at some stages, the authority was still bound to
follow the law. Absence of a party does not give power to a
statutory officer to pass two different final judgments in the same
proceeding, especially when the second order substantially
changes the extent of conveyance. The larger question is about the
very competence of respondent No.12 to pass the second judgment
after the first judgment had already concluded the matter. On that
point, the explanation offered by the respondents does not carry
the matter any further.
15. The submission of Mr. Pawar, learned Advocate for
respondent No.2, that the later architect's certificate reflects the
correct entitlement of respondent No.2, also cannot be accepted in
the manner suggested. Even if the later certificate showed a
different entitlement, the authority still had to act within the limits
of law. The correctness of the entitlement cannot by itself confer
jurisdiction. Therefore, the argument that the later certificate
justified the later order is not enough. The real question is not
whether respondent No.2 believed it was entitled to a larger area.
The question is whether the authority could legally reopen and
enlarge the earlier grant without a fresh and lawful proceeding.
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The answer must be in the negative.
16. The reliance placed on the judgment in Jagshi Jethabhai
Chheda also supports the petitioner on the issue of notice. Where
the statute requires notice to the concerned society or affected
party, the authority must show strict compliance. A proceeding that
results in deemed conveyance directly affects title and possession.
It is a necessary part of fair decision-making. The Court cannot
close its eyes to such a defect merely because the other side says
the petitioner did not appear.
17. At this stage, it becomes necessary to deal with the question
whether the conduct attributed to respondent No.12 is of such a
nature that it requires further action by the Government under the
Maharashtra Civil Services (Pension) Rules, 1982. The issue is
whether the material on record is serious enough to require the
Government to examine it and take a proper decision. In this
context, the law laid down by the Supreme Court in Union of India
v. K.K. Dhawan assumes importance. The Supreme Court has made
it clear that even when an officer exercises quasi judicial powers,
he does not get full protection from disciplinary action. The
argument that once an order is quasi judicial, it can only be
challenged in appeal and no action can be taken against the officer,
has been clearly rejected. The Court has explained that what is
examined in disciplinary proceedings is not the correctness of the
order. It is the conduct of the officer while passing that order. This
distinction is very important and cannot be ignored. If an officer
passes an order honestly, after applying mind, and even if that
order is wrong, then ordinarily no disciplinary action is required.
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But if the manner in which the order is passed shows something
more, such as clear disregard of law, lack of good faith, or conduct
which raises doubt about integrity, then the matter does not
remain a simple legal error. It becomes an issue of conduct. In such
a case, the Government is not helpless. It can examine the conduct
and take action.
18. Applying these principles to the present case, what is seen is
not merely a wrong order. From the original file placed before the
Court, it is seen that the roznama of the proceedings has been
maintained at two different places. The roznama is the basic
record of what happened in the proceedings on each date. It shows
who appeared, what was argued, and what steps were taken.
When such an important record is found in two separate sets, it
creates suspicion. It becomes difficult to understand which record
is correct. In a matter involving transfer of property rights, such
confusion in official record naturally gives rise to doubt about the
manner in which the proceedings were conducted.
19. The situation becomes more serious when this aspect is seen
along with the manner in which the second order has been passed.
The second judgment, dated 28 February 2020, contains in many
places the very same sentences, word for word, as found in the
earlier order dated 7 February 2019. The narration of facts, the
submissions of parties, and even the reasoning appear to have
been reproduced almost entirely. This gives a clear impression that
the second order is not an independently written decision after
fresh application of mind, but is largely a repetition of the earlier
one with certain changes in the operative part.
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20. What is more important is that, despite such reproduction,
the second order does not even mention that an earlier order had
already been passed and that the proceedings had come to an end.
There is no discussion as to why the earlier order was insufficient,
or under what provision the matter was being reconsidered. There
is also no indication that fresh proceedings were formally initiated.
The absence of such reference strikes at the root of the decision
making process. The second order proceeds in a manner as if the
authority was deciding the matter for the first time. It reads like an
original order passed in fresh proceedings, without any past
history. When a matter has already been decided, any further
action must clearly show the basis for reconsidering it. The order
must disclose reasons for such course. This manner of passing the
second order creates a serious doubt. It gives an impression that
the earlier order has been practically set aside. The authority has
granted a larger conveyance by reusing the earlier reasoning and
inserting reliance on new certificates, without restarting the
process in a lawful manner.
21. When these factors are taken together, namely the existence
of two separate roznama records, the verbatim reproduction of the
earlier order, and the complete absence of reference to the earlier
final decision, the overall picture ceates doubts about the conduct
of officer.
22. The explanation given by respondent No.12 is that it was an
inadvertent mistake. An apology has also been tendered. This
Court takes note of the same. However, merely calling it a mistake
does not close the matter. The nature of the act must be seen.
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Passing two final orders in the same proceedings is an act which
shows lack of due care in exercise of statutory power.
23. Applying above principles to the present case, it is evident
that respondent No.12 acted in a manner which at least shows
recklessness in the discharge of statutory duty. Passing a second
substantive order after final disposal of proceedings affects
valuable property rights. The manner of action clearly falls within
the category where an officer has failed to observe the prescribed
legal limits while exercising statutory power.
24. However, there is one important limitation which cannot be
ignored. Under Rule 27(2)(b)(i) of the Maharashtra Civil Services
(Pension) Rules, 1982, departmental proceedings against a retired
officer are required to be initiated within a prescribed period. In
the present case, it is not in dispute that the period of four years
from the date of the alleged act has already expired. Therefore,
even if this Court forms an opinion that the conduct of respondent
No.12 deserves departmental scrutiny, such proceedings cannot
now be directed in view of the statutory bar. The Court cannot
issue a direction which the law itself does not permit to be carried
out.
25. This, however, does not mean that the conduct should go
without any consequence. A Court exercising jurisdiction under
Article 226 is not powerless in such a situation. When a public
officer has acted in a manner which results in unlawful orders and
causes prejudice to a party, the Court can mould the relief to
ensure that some accountability is fixed. The petitioner has been
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compelled to approach this Court and undergo litigation because
of an order which has been found to be without authority of law.
In these circumstances, directing payment of costs becomes
appropriate. Costs serve as a reminder that statutory powers must
be exercised with responsibility. When an officer, even by
negligence or carelessness, passes orders beyond his jurisdiction
and causes hardship to parties, he cannot be completely insulated
from the consequences.
26. Considering the nature of the lapse, the position held by
respondent No.12, and the fact that departmental proceedings are
now barred by limitation, this Court is of the view that ends of
justice would be met by directing respondent No.12 to personally
pay costs quantified at Rs.50,000/- to the petitioner. This amount
reflects disapproval of the conduct, while also taking into account
that the officer has since retired.
27. In view of the aforesaid discussion and reasons recorded
hereinabove, I proceed to pass the following order:
(a) The writ petition is allowed;
(b) The impugned order dated 28 February 2020 passed by
respondent No.1 granting deemed conveyance in favour of
respondent No.2 is quashed and set aside;
(c) The conveyance deed dated 27 June 2022 executed
pursuant to the said impugned order is also quashed and set
aside;
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(d) It is declared that the order dated 7 February 2019
shall stand unaffected by the present judgment;
(e) Respondent No.12 shall pay costs of Rs.50,000/- to the
petitioner within a period of eight weeks from today;
(f) In the event of failure to pay the said amount within
the stipulated period, the amount shall carry simple interest
at the rate of 6 percent per annum from the expiry of eight
weeks till realization;
(g) Rule is made absolute in the aforesaid terms.
(h) No order as to further costs.
(AMIT BORKAR, J.)
