[Cites 4, Cited by 0]
Bombay High Court
Prestige Residency Orchid Co Op. Hsg. ... vs State Of Maharashtra Through G P And Ors on 10 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:6807
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.4135 OF 2025
SHABNOOR Prestige Residency Orchid Cooperative
AYUB
PATHAN Housing Society Ltd. ... Petitioner
Digitally signed by
SHABNOOR AYUB
V/s.
PATHAN
Date: 2026.02.10
The State of Maharashtra & Ors. ... Respondent
16:04:09 +0530
Mr. Atul G. Damle, Sr. Advocate, i/b Jayesh Joshi, for
the Petitioner.
Mr. B. B. Dahiphale, for the State - Respondent Nos.1
and 2.
CORAM : AMIT BORKAR, J.
DATED : FEBRUARY 10, 2026
P.C.:
1. The petitioner-society has instituted the present writ petition
impugning the order passed by the Competent Authority in
exercise of powers under Section 11 of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963. By the said order, the
application preferred by the petitioner seeking grant of unilateral
deemed conveyance came to be rejected. The legality and
propriety of that determination are under challenge in these
proceedings.
2. The material facts, as borne out from the record, are that
Respondent No.5 was the owner of larger parcels of land bearing
Survey No.147/3 admeasuring 2 Hectares 43 R 0 P, Survey No.150
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admeasuring 0 Hectare 63 R 0 P, and Survey No.151 admeasuring
0 Hectare 63 R 7 P. The aggregate area of these lands admeasured
approximately 3 Hectares 69 R 70 P, equivalent to about 36,970
square meters. The said property is situated at Village Kavesar, Post
Kasarvadavali, Ghodbunder Road, Thane West, within the local
limits of Thane.
3. From out of the aforesaid larger landholding, Respondent
No.3 undertook development of a substantial portion in
accordance with the sanctioned layout plan. As per the sanctioned
layout, the net plot area comprising Plots 'A' and 'B' admeasures
35,532.24 square meters. Residential buildings were constructed
by Respondent No.3 on the said plots and agreements for sale
were executed in favour of flat purchasers in terms of Section 4 of
MOFA. Upon completion of sales, the flat purchasers constituted
the petitioner-society in the year 2007. In spite of the statutory
mandate requiring the promoter to execute a conveyance in favour
of the society within four months of its formation, Respondent
No.3 failed to discharge the said obligation. In these
circumstances, the petitioner-society, in the year 2023, invoked
Section 11 of MOFA and applied for grant of deemed conveyance.
4. The application was resisted by Respondent No.3 on the
ground that the claim was premature in the absence of execution
of conveyance in favour of an apex society for the entire layout.
After affording an opportunity of hearing to the parties, the
Competent Authority rejected the application. The rejection was
primarily founded on the discrepancy between the area recorded
in the revenue entries and the area claimed by the petitioner-
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society. The Authority further held that in the case of a sanctioned
layout, conveyance in favour of an individual society cannot be
granted unless an apex body is first constituted. Being dissatisfied
with the said order, the petitioner has approached this Court.
5. By order dated 26 March 2025, this Court issued notice to
Respondent Nos.3 and 4 for final disposal of the petition. The
learned advocate appearing for the petitioner has produced on
record an affidavit of service dated 24 January 2026. The said
affidavit bears the seal of Respondent No.3 and demonstrates that
Respondent No.3 was duly served and had knowledge of the
pendency of the present proceedings as well as of the order dated
26 March 2025.
6. Notwithstanding service of notice on 24 January 2026,
Respondent No.3 has chosen not to enter appearance. In view of
the due service established on record and absence of
representation on behalf of Respondent No.3, this Court proceeds
to adjudicate the petition on merits.
7. A careful reading of the agreements executed between
respondent No.3 and the flat purchasers leaves no room for doubt.
Clause 41 places a clear duty on the developer. It states that the
conveyance of the property must be executed in favour of the
proposed co operative society within a reasonable time. The clause
also mentions that once several societies are formed within the
layout, they may together constitute an apex body. That apex body
is to manage and control the common amenities. The structure of
the clause shows the sequence. First, conveyance is to be made in
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favour of each society in respect of its building and proportionate
land. Thereafter, an apex body may be formed for administration
of shared facilities. The clause does not postpone conveyance until
the apex body comes into existence. It recognises the right of each
society to receive title to the land relatable to its building.
8. The statutory scheme reinforces this position. Rule 9 of the
Maharashtra Cooperative Societies Rules, 1961 fixes the timeline
for conveyance. The obligation to convey arises on expiry of four
months from the date of registration of the society. The rule uses
the expression period. That word has significance. It refers to a
definite span of time. It cannot mean an uncertain event such as
completion of an entire layout or formation of an apex body. If the
right of a housing society is made dependent on an uncertain
future event, the protection granted by Rule 9 becomes illusory. A
promoter cannot keep the society waiting indefinitely by pointing
to events that may or may not happen. The law does not permit
such open ended postponement.
9. This issue is no longer res integra. In Lok Housing and
Construction Limited v. State of Maharashtra and Others, 2025
SCC OnLine Bom 711, this Court examined the scope of Rule 9 and
the obligation under Section 11 of MOFA. The Court considered
whether a promoter could rely on contractual terms to delay
conveyance beyond the statutory period. The Court held that Rule
9 is not a mere procedural formality. It gives effect to Section 11 of
MOFA, which casts a positive and mandatory duty on the promoter
to convey title to the organisation of flat purchasers. The four
month period is a legislative safeguard. It ensures that purchasers
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are not left uncertain about ownership of the land and building.
The Court further held that private agreements cannot override
this statutory command. The word period in Rule 9 was
interpreted to mean a fixed and determinable span of time. It
cannot be equated with a vague future contingency such as
completion of an entire development. Any clause that attempts to
dilute or defeat this statutory obligation must be ignored to that
extent. The reasoning proceeds on the footing that MOFA is a
welfare legislation enacted to correct the imbalance between
promoters and flat purchasers. The statute must therefore receive
a purposive interpretation.
10. In light of this legal position, the objection raised by
respondent No.3 that conveyance must await formation of an apex
body cannot be sustained. Clause 41 itself contemplates
conveyance to individual societies. The statute fixes a definite
timeline. The petitioner society was registered long back. The
obligation to convey had arisen years ago.
11. Once Clause 41 and Rule 9 are read together, the duty of the
developer becomes clear. The developer was required to convey to
the petitioner society the land proportionate to its building,
together with the undivided share in common areas and amenities.
As regards the alleged discrepancy in area, the record shows that
no specific denial was made in the written statement. The
contesting respondent did not place material to contradict the
figures relied upon by the petitioner. In the absence of a clear and
specific denial, the Competent Authority could not have rejected
the application merely by observing that the revenue area did not
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match. An adjudicatory authority must base its decision on
pleadings and evidence. A vague doubt cannot displace a statutory
right.
12. The architect's certificate placed on record sets out the
calculations in detail. It specifies the total net plot area of Plot A
and Plot B as 35,532.24 square meters. It identifies the permissible
built up area of Building No.8 Type C, which belongs to the
petitioner society, as 2,780.84 square meters. The undivided share
of this building is stated as 12.34 percent. On that basis, the
proportionate rights in the balance plot area are calculated by
applying the formula 2780.84 divided by 22,529.51 multiplied by
22,139.75. These figures are drawn from the sanctioned plan and
the development permissions. There is no material on record to
discredit this computation.
13. The final computation shows that the petitioner society is
entitled to 2732.73 square meters out of 22,139.75 square meters
towards proportionate rights in the balance plot area, and 482.25
square meters out of 3,907.02 square meters towards
proportionate rights in the recreational ground area. The
aggregate comes to 3,214.98 square meters out of 26,046.77
square meters of land bearing Survey Nos.147 Part and 151 Part at
Village Kavesar, District Thane. In addition, the society is entitled
to proportionate rights in the road setback area admeasuring
133.10 square meters out of 1,078.32 square meters. These figures
flow from the architect's certificate and the sanctioned layout.
They reflect the building's share in the overall development.
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14. In view of the contractual terms, the statutory mandate, and
the material on record, the refusal to grant deemed conveyance
cannot stand. The reasons assigned by the Competent Authority do
not accord with Clause 41 or Rule 9. The impugned order
therefore suffers from legal infirmity and is liable to be set aside.
15. The Rule is made absolute in terms of prayer clause (a).
16. Respondent No.2, the Competent Authority, shall issue the
certificate under Section 11 sub section 5 of MOFA in favour of the
petitioner society within four weeks from the date on which a copy
of this order is produced. The certificate shall specify the area as
determined herein.
17. The writ petition stands disposed of in the above terms. No
order as to costs.
(AMIT BORKAR, J.)
