[Cites 15, Cited by 0]
Bombay High Court
M/S Asian Chemical Industries Throu. ... vs Vijay Kailas Industries Premieses And ... on 11 February, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:7048
WP.11164.2024.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11164 OF 2024
M/s. Asian Chemical Industries .. Petitioner
Versus
Vijay Kailas Industrial Premises CHS Ltd. and
Ors. .. Respondents
....................
Mr. Ashish Kamat, Senior Advocate, a/w Ms. Priyanka Chadda, D.K.
Shukla i/b Mr. Shivam Singh, Advocates for Petitioner.
Mr. Dushyant Pagare a/w Ms. Shubashree Yewale, Advocates for
Respondent No. 1.
Mr. Pradeep J. Thorat i/b Ms. Aditi S. Naikare, Advocates for
Respondent No. 3.
Mr. P.J. Gavhane, A.G.P for Respondent No. 7 - State.
....................
CORAM : MILIND N. JADHAV, J.
DATE: : FEBRUARY 11, 2026.
JUDGMENT:
1. Heard Mr. Kamat, learned Senior Advocate for Petitioner;
Mr. Pagare, learned Advocate for Respondent No.1; Mr. Thorat,
learned Advocate for Respondent No.3 and Mr. Gavhane, learned AGP
for Respondent No.7 - State. By consent, Writ Petition is heard and
disposed of finally.
2. Petition is filed challenging impugned Order dated
20.03.2024 passed by the District Deputy Registrar of Cooperative
Societies (for short "Respondent No.2") granting Certificate of
Unilateral Deemed Conveyance under Section 11 of Maharashtra
Ownership of Flats Act, 1960 (for short "MOFA") to Respondent No. 1
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- Society.
3. Briefly stated, in or about 1950, one Shri. Amrutlal G.
Sonawala, (for short "Original Owner") was the absolute owner of plot
bearing Survey Nos. 111, 112 and 125 corresponding to CTS No. 498,
498/1 to 8, Revenue Village - Aksar Pahadi, Borivali, Mumbai. By
Indenture of Lease dated 08.05.1963, Original Owner leased plot of
land bearing CTS No. 498A, 498/1 to 3, Village Aksar Pahadi, Borivali,
Mumbai (for short "subject land") to Respondent No. 4. On or about
31.12.1964, Respondent No. 4 agreed to transfer and assign lease of
subject land to Petitioner to construct certain structures. Petitioner
constructed a ground plus two storey structure on subject land.
Municipal Corporation of Greater Mumbai (for short "MCGM")
assessed the structure for property tax and bill was issued for the same.
3.1. On 24.08.1966, Respondent No. 4 entered into registered
Deed of Assignment with Petitioner to assign remainder leasehold
rights in the subject land and ownership right in the structures
constructed thereon to Petitioner. Between 1966 to 1967 Petitioner let
out the Units constructed in the ground plus 2 storey structure
standing on the subject land to tenants (members of Respondent No.1
Society) on tenancy basis. Thereafter in or about 1976, Original Owner
submitted proposal along with building plan to MCGM to construct a
ground plus one storey structure on adjacent land bearing old CTS No.
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498 (Part) and new CTS No.498B however the same was not
approved.
3.2. In 1985, Original Owner filed RAE & R Suit No. 398 / 1217
of 1985 in the Small Causes Court to evict Petitioner and its tenants,
however during pendency of aforementioned suit, Original Owner
expired and his legal heirs were brought on record and thereafter due
to compromise between parties the suit was withdrawn by the legal
heir/s of the Original Owner.
3.3. In 2009, Respondent No. 3 i.e. son of Original Owner
executed unregistered Deed of Conveyance dated 29.08.2009 with
respect to subject land in favour of proposed Respondent No.1 Society.
Respondent No.3 executed individual Deeds of Conveyance in favour
of all tenants directly to transfer ownership of their respective Units
and one such Deed of Conveyance dated 25.03.2010 executed with
one tenant viz; M/s. Kundan Industries transferring ownership of
Unit / Gala No.3 is relied upon and appended to the present Petition.
3.4. On 11.04.2014, Respondent No. 1 - Society was formed and
duly registered by the tenants. On 21.08.2023, Respondent No. 1 -
Society filed Application No. 109 of 2023 under Section 11(3) of
MOFA seeking Unilateral Deemed Conveyance Certificate before
Respondent No.2 in respect of the subject land and the two standing
structures thereon. On 20.03.2024, Respondent No.2 allowed the
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aforementioned application and issued Unilateral Deemed Conveyance
Certificate to Respondent No. 1 - Society. Hence the present Petition.
4. Mr. Kamat, learned Senior Advocate for Petitioner would
submit that the impugned Order dated 20.03.2024 is illegal, perverse,
passed without complete application of mind, without due
consideration of Petitioner's subsisting leasehold rights in the subject
land, without considering Petitioner's ownership right in the structures
standing on the subject land, without considering the relationship of
landlord and tenant of Petitioner with all 23 members (tenants) being
in subsistence and therefore on the basis of the documents on record it
deserves to be set aside.
4.1. He would submit that the Original Owner was the absolute
owner of land bearing Survey No. 111, 112 and 125(part) at Village
Aksar Pahadi, Goregaon East, Taluka Borivali now bearing CTS No.
498, 498/1 to 8. He would submit that on 08.05.1963, Original Owner
executed registered Lease Deed in favour of Respondent No. 4 in
respect of land bearing CTS No. 498A, 498/1 to 3 being the subject
land. He would submit that Respondent No. 4 and Petitioner executed
Deed of Assignment dated 24.08.1966 whereby Respondent No. 4
assigned the remainder of the lease period in the subject land to
Petitioner and this fact is admitted and undisputed between all parties.
He would submit that Petitioner constructed a ground plus two storey
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structure containing 24 Units / Galas which were leased to the 23
tenants by Petitioner since 1966 onwards on monthly tenancy basis.
4.2. He would submit that structures upon the subject land were
duly assessed for property tax by MCGM and property tax bill is issued
in the name of Petitioner. He would submit that as per Property
Register Card dated 05.01.2016, nomenclature of subject land bearing
CTS No. 498 was changed to CTS No. 498A admeasuring 1246.40
square meters and 498B admeasuring 1102.70 square meters. He
would submit that subject land is situated within CTS No. 498A and
since there is no sub-division of plot / layout by MCGM, Petitioner
remains and subsists as lessee of plot Nos.498A, 498A/ 1 to 3 and
owner of the structures standing thereon.
4.3. He would submit that in 1976 the Original Owner submitted
proposal and plan to MCGM to construct a ground plus one storey
building on land presently bearing CTS No. 498B admeasuring 427.26
square meters however the same was not approved. He would submit
that the proposal and plans bear no acceptance remark nor any stamp
of approval from the appropriate Authority, however despite which the
building was constructed thereon in total disregard of the
aforementioned plan. He would submit that this building has no nexus
with the ground plus two storey structure constructed authorisedly on
the subject land by Petitioner and the Units / Galas in which were let
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out to the tenants i.e. members of the Society. He would submit that
while seeking deemed conveyance the Society fraudulently
misrepresented the building plan pertaining to a building constructed
on the adjacent plot of land before Respondent No.2 so as to pass it off
as the ground plus two storey structure housing the tenants
constructed on the subject land to obtain Unilateral Deemed
Conveyance. He would submit that this is not a mere allegation but
prima facie this misinterpretation stands proved on the face of record
when the building plan referred to and relied upon by the Society is
seen by the Court as appended thereto and this is not denied by the
Respondent No.1 - Society. He would submit that the Plan annexed to
the Deemed Conveyance Application is of a ground plus one storey
structure having a much lesser dimension constructed on the adjacent
parcel of land next to the subject land having no nexus with the
present case at hand.
4.4. He would submit that property tax assessment bill is issued
by MCGM in favour of Petitioner which is dated 01.01.1965, hence the
building was constructed prior to 01.01.1965 and not in 1976 as
alleged by Respondent No.1. He would submit that Respondent No. 1
produced Architect's Certificate which does not pertain to the building
plan of the proposed ground plus two storey tenanted structure neither
does it mention the area of the structure, hence Respondent No.1
obtained Deemed Conveyance Certificate by playing fraud and by
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misrepresentation.
4.5. He would submit that the Original Owner filed RAE & R Suit
bearing No. 398/1217 of 1985 for eviction of Petitioner and
Petitioner's tenants (members of Respondent No.1 - Society) as well as
for possession of the subject land. He would submit that in the Suit
plaint, Petitioner's tenants (23 members of the Society) were termed as
sub-tenants therein however the same sub-tenants now claim to be
members of Respondent No. 1 - Society. He would submit that after
demise of Original Owner, his legal heirs were brought on record and
they withdrew the RAE & R Suit bearing No. 398/1217 of 1985 after
effecting a compromise with the Petitioner. He would submit that
subsequent to withdrawal of the eviction suit, neither Petitioner's
leasehold right nor its ownership in the structures is challenged neither
extinguished before any forum / Court or by any Court of law and
hence Petitioner's leasehold rights in the subject land and its ownership
in the structures are valid, subsisting and binding upon all Respondents
and any person who claims under the deceased owner Original Owner.
4.6. He would submit that perusal of the Deed of Conveyance
dated 25.03.2010 relied upon by Respondent No.1 - Society would
show that it is averred therein that settlement was reached between
Petitioner and Respondent No. 3 with regard to surrender of the
leasehold right of Petitioner in respect of subject land and ownership of
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structure thereon to Respondent No. 3 and a Settlement Deed was
executed to that effect. He would submit that however no such
Settlement Deed was produced before Respondent No.2 and
Petitioner's leasehold rights in the subject land and ownership in the
structures is valid, subsisting and binding upon Respondent No. 3,
Respondent No. 1 - Society and all its members who are statutory
tenants of Petitioner. He would submit that aforementioned Deed of
Conveyance falsely states that Petitioner surrendered all right, title and
interest in the structure in favour of Respondent No. 3. He would
submit that Petitioner is not a party to either the alleged Deed of
Conveyance dated 25.03.2010 nor the alleged Deed of Confirmation
dated 18.12.2010, hence both these documents do not bind the
Petitioner nor affect the leasehold rights in the subject land and
ownership in the structures standing thereon.
4.7. He would submit that Petitioner through their advocates
addressed notices dated 09.10.2023, 30.10.2023, 05.12.2023 and
15.02.2024 requesting Respondent No. 1 to give inspection of the
documents annexed to its Application as well as other documents
relied upon, however no inspection was given of the same. He would
submit that Respondent No.2 granted Certificate of Deemed
Conveyance in pursuance of documents executed by a person who does
not fall within the definition of "Promoter" under the provisions of
MOFA. He would submit that Petitioner's leasehold rights in the
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subject land are not extinguished in any manner and neither tenancy of
the tenants is / was was validly and legally converted into ownership
as alleged. He would submit that neither the alleged Deed of
Conveyance dated 25.03.2010 nor the alleged Deed of Confirmation
dated 18.12.2010 prove the agreement for sale between Promoter /
owner of building and the individual Gala / unit holders, hence the
aforementioned Deeds cannot fall within the definition of "agreement"
as per Section 4 of MOFA. He would submit that Respondent No.2 has
wrongly recorded name of Respondent No. 4 as Imla Malik in respect
of the structure on the said property which infact legally and judicially
stood in the ownership of Petitioner as landlord and lessee contrary to
the Property card which reflects name of Respondent No. 3 as Imla
Malik and this erroneous observation has materially affected the
decision of Respondent No.2 in passing the impugned Order dated
20.03.2024 granting Deemed Conveyance to Respondent No. 1 -
Society. He would submit that the purported Deed of Conveyance
dated 25.03.2010 executed by Respondent No. 3 in favour of M/s.
Kundan Industries i.e. one of Petitioner's tenant does not elucidate
how Petitioner as lessee gets divested of its title and its leasehold rights
in the subject land stand extinguished and how tenancies of the 23
tenants get extinguished and converted into ownership so as to entitle
them to form a Cooperative Housing Society, register the same in 2014
and seek Deemed Conveyance to the detriment of the subsisting legal
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right of the Petitioner in the subject land and its ownership right in the
structure standing thereon.
4.8. He would submit that Deed of Conveyance executed by
Respondent No. 3 in favour of Respondent No. 1 does not conform to
requirements of Section 4(1A) of MOFA read with Rule 15 of
Maharashtra Ownership of Flats Rules, 1959. He would submit that as
per the aforementioned provisions, title certificate, approved sanction
plan, Commencement Certificate ought to be annexed however no
such documents were annexed, hence the purported Deed of
Conveyance is not an agreement as per Section 4 of MOFA. He would
submit that copies of Intimation of Disaproval (IOD) and
Commencement Certificate (CC) were mentioned in the list of
documents however they were never produced before Respondent
No.2. He would submit that Respondent No. 1 produced certain
documents pertaining to permissions and sanctions for construction
issued by MCGM, however the same pertain to the construction of a
ground plus one storey structure standing on the adjoining plot i.e. plot
bearing CTS No. 498B and not to the ground plus two storey structure
occupied by the 23 tenants (members of Respondent No.1 - Society).
4.9. He would submit that Deed of Confirmation dated
08.12.2010 clearly shows that its registration was refused as
Respondent No.3 was not present. He would submit that perusal of the
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Deed of Confirmation shows that on one particular internal page i.e.
page No.127, the Sub-Registrar's stamp affixed is of the year 2011
whereas the rest of the document pages bear the stamp of the year
2010. This prima facie clearly suggests that Respondent No.1 has
engaged in foul play and fraud to register the Deed of Confirmation
dated 18.12.2010, which is ignored by Respondent No.2 for reasons
best known to him. He would urge the Court to call upon Respondent
No.1 and Respondent No.2 to answer the above issue which is prima
facie not only shocking but it clearly borders on illegality and
dishonesty.
4.10. He would submit that Affidavit-in-reply dated 30.09.2024
filed by Respondent No.1 before this Court, brings out a completely
new set of facts which contradict the initial stand adopted by
Respondent No.1 before the Respondent No.2 while seeking deemed
conveyance. He would submit that Respondent No.1 has now during
hearing before this Court placed a purported Deed of Conveyance
dated 29.08.2009 which was never even produced before Respondent
No.2 for seeking Deemed Conveyance. He would submit that through
the aforementioned 2009 Deed of Conveyance, it shows that
Respondent No.3 allegedly conveyed the subject land to Respondent
No.1 for consideration of Rs.11,00,631.60/- 14 years prior to the filing
of the Application for Deemed Conveyance. He would submit that this
Deed of Conveyance is fundamentally flawed and it is a clear attempt
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to mislead the Court and is unsustainable in law. He would submit that
the Affidavit-in-reply dated 30.09.2024 also brings on record alleged
rent receipts which were never ever produced before Respondent No2
at the time of seeking deemed conveyance. He would submit that the
alleged rent receipts are a complete afterthought and a premeditated
attempt by Respondent No.1 to defeat Petitioner's ownership right in
the structure standing on the subject land which is occupied by its
tenants (members of the Society). He would submit that when
Respondent No.1's Advocate could not answer the discrepancy pointed
out in the 2010 Deed of Conveyance to the Court, on the next date of
hearing the 2009 Deed of Conveyance was produced before the Court.
He would submit that during pendency of the RAE & R Suit, Petitioner
has deposited lease rent in the Court and also paid it to Respondent
No.3 directly and the purported rent receipts predate the RAE & R
Suit, hence it is impossible for Respondent No.1 to have paid rent
directly to Respondent No.3 at the same time simultaneously.
4.11. In support of his above submissions he has referred to and
relied upon the following decisions of the Supreme Court and this
Court to contend that in the facts of the present case the present
Petition deserves to be allowed and the Certificate of Deemed
Conveyance dated 20.03.2024 and all consequential actions thereto be
quashed and set aside.
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(i) Dinkar S. Vaidya vs. Ganpat S. Gore & Ors. 1;
(ii) Nimesh J. Patel vs. MCGM & Anr. 2;
(iii) AH Wadia Trust & Ors. vs. State of Maharashtra and
Ors.3;
(iv) Mazda Construction Co. and Ors. vs. Sultanabad
Darshan CHS Ltd. and Ors.4;
(v) Nagindas Ramdas vs. Dalpatram Ichharam alias
Brijram & Ors.5;
(vi) Narhari Chandrayya Kanda vs. Heren Damji Gala and
Anr.6
(vii) S.P. Chengalvaraya Naidu (Dead) By LRS. vs. Jagannath
(Dead) and Ors. 7.
5. PER CONTRA, Mr. Pagare, learned Advocate for Respondent
No. 1 - Society would support the impugned order as correctly passed
in law after due consideration of all material on record. He would
submit that the Original Owner leased the subject land to Respondent
No. 4 vide Indenture of Lease dated 08.05.1963. He would submit that
Respondent No.4 assigned leasehold right in the subject land to the
Petitioner vide Deed of Assignment dated 24.08.1966 to develop a
factory building. He would submit that Lease Deed dated 08.05.1963
expired by efflux of time on 31.03.1983 and Original Owner filed
Eviction Suit in Small Causes Court, Mumbai to evict the Petitioner,
however during pendency of the suit, Original Owner expired and
Respondent No. 3 i.e. heir of Original Owner settled the suit wherein
1 1980 SCC OnLine Bom 137
2 2021 SCC OnLine Bom 6588
3 2021 SCC OnLine Bom 1441
4 2010 SCC OnLine Bom 1266
5 (1974) 1 SCC 242
6 2024 SCC OnLine Bom 1933
7 (1994) 1 SCC 1
WP.11164.2024.doc
Petitioner surrendered all its right, title and interest in the subject land
to Respondent No. 3. Though this last submission is advanced, it is not
substantiated by any documentary evidence prima facie so as to
consider Respondent No.1's case.
5.1. He would submit that since Petitioner surrendered its right,
title and interest in the subject land and structure thereon, Respondent
No.3 began accepting rent from the tenants (members of the Society)
of the structure and in 2010, after they agreeing to pay 120 months
rent to Respondent No.3 they approached Respondent No.3 to
purchase their respective galas on ownership basis. He would submit
that Respondent No.3 at that time accepted their request and executed
the Deed of Conveyance with each gala owner and one such Deed of
Conveyance dated 25.03.2010 is appended to the Petition at Exhibit "I"
at page No. 106. He would submit that Respondent No. 3 executed a
Power of Attorney in favour of his son to execute the Deed of
Conveyance however since the Power of Attorney holder of
Respondent No. 3 was not available at the time of registration, Deed of
Confirmation dated 18.12.2010 was executed unilaterally to confirm
conveyance of Gala No.3 to its owner i.e. M/s. Kundan Industries. He
would submit that on execution of Power of Attorney on 13.09.2010,
Deed of Conveyance dated 25.03.2010 was presented for registration
once again along with Deed of Confirmation dated 18.12.2010.
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5.2. He would submit that Respondent No.1 - Society also
executed unregistered Deed of Conveyance dated 29.08.2009 with
Respondent No.3 i.e. present owner to convey the subject land
however since he never presented himself for registration, Respondent
No.1 was constrained to file Application for Deemed Conveyance.
5.3. He would submit that the Deed of Conveyance is to be
treated as "agreement" as contemplated by Section 4 of MOFA. He
would submit that Petitioner ought to challenge the Conveyance Deed
dated 25.03.2010 and Confirmation Deed dated 18.12.2010 in the
Civil Court and the same cannot be set aside by this Court in Writ
Jurisdiction. He would submit that there is no bar under Section 119 of
the Transfer of Property Act, 1882 to transfer the title of leasehold
property.
5.4. He would submit that on 11.02.2014 Respondent No .1
registered itself as Cooperative Society and since then Respondent No.
1 is paying municipal taxes and other Government levies. He would
submit that Respondent No. 1 addressed letters to Respondent No. 3 to
convey the subject land however no response was received, hence
Respondent No. 1 filed Application No. 109 of 2023 before Respondent
No.2 seeking Deemed Conveyance of the subject land.
5.5. He would submit that during hearing of the Application for
Deemed Conveyance before Respondent No.2, Respondent No. 3
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denied Respondent No.1's entitlement to said land. He would submit
that Respondent No. 3 falsely claimed that tenants under
misrepresentation entered into Deed of Confirmation to confirm
conversion of their tenancy into ownership. He would submit that if
that be the case then Respondent No. 3 ought to have challenged the
aforementioned Deed of Confirmation before the appropriate forum.
He would submit that neither Respondent No. 3 nor Petitioner
challenged the Conveyance Deed or Confirmation Deed neither did
they challenge the status of registration of Respondent No. 1 as
Society. He would submit that it is trite law that rights of vendor and
lessor transfer to the Society on the date Deemed Conveyance is
granted to the Society and hence as Petitioner was lessee of the
predecessor of Respondent No. 3, Petitioner would now become the
lessee of Respondent No. 1 - Society and thus Petitioner as lessee now
cannot challenge the order of Deemed Conveyance.
5.6. He would submit that Petitioner has not paid lease fee to the
Original Owner since 1985 and after his demise to Respondent No. 3,
hence Petitioner has committed breach of the terms of the Lease Deed,
thus in view of such default, the lease deed between Petitioner and
Original Owner's legal heirs i.e. Respondent No. 3 would automatically
stand terminated. He would submit that Petitioner was permitted to
occupy the subject land for the purpose of constructing 2 structures
thereon and for no other purpose, hence on completion of
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construction, the Lease Deed would otherwise automatically terminate
as per Section 111(b) and (c) of Transfer of Property Act, 1882. He
would submit that Petitioner does not possess right to claim any title
over the suit property and challenge the order granting Deemed
Conveyance. He would submit that Petitioner does not possess
leasehold rights over the subject land and hence has no locus to file
the present Petition.
5.7. He would submit that it is Petitioner's case that both
structures were constructed after requisite permissions and certificates
were granted by MCGM hence Petitioner is precluded from claiming
that both structures were constructed illegally. He would submit that
since Petitioner constructed both structures and since requisite MCGM
permissions all lie in the name of Original Owner, then Petitioners
would be deemed "promoter" under the provisions of MOFA.
5.8. He would submit that Respondent No. 1 obtained Deemed
Conveyance Certificate from Respondent No.2 on the basis of
registered documents hence if Petitioner seeks to set aside the Deemed
Conveyance Certificate granting Deemed Conveyance then Petitioner
ought to challenge all registered documents submitted before
Respondent No.2 in the Civil Court with a prayer seeking cancellation
of the said documents.
5.9. In support of his above submissions he has referred to and
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relied upon the following decisions of the Supreme Court and this
Court to contend that the present Petition deserves to be dismissed in
view of the ratio cited in the said cases:-
(1) Arunkumar H. Shah Huf V/s Avon Arcade Premises
Cooperative Society Limited and Ors. 8 ;
(2) Nahalchand Laloochand Private Limited & Ors. V/s.
Panchamrut CHS Limited & Ors.9 ;
(3) Blue Heaven Cooperative Housing Society Limited V/s.
Punit Constructions Company Ltd & Ors. 10
(4) Riddhi Gardens Building No. A-1, A-2 Cooperative
Housing Society Limited V/s District Deputy Registrar,
Cooperative Societies and Ors.11 ;
(5) ACME Enterprises and Anr. V/s. Depurty Registrar of
Cooperative Societies and Ors.12 ;
(6) Subash Ramchandra Navare and Anr V/s. Premji Meghji
Rambia and Ors.13 ;
(7) Mahanagar Housing Partnership Firm & Ors. V/s. District
Deputy Registrar of Cooperative14 ;
(8) Jai Jalaram Cooperative Housing Society Lts. V/s. M/s.
Nanji Khimji & Coperative and Ors.15 ;
(9) Tanish Associates and Ors. V/s. State of Maharashtra 16 ;
(10) M/s. Shree Chintamani Builders V/s. The State of
Maharashtra17 ;
(11) Zainul Abedin Yusufali Massanwala & Ors. V/s.
Competant Authority District Deputy Registrar of
Cooperative Housing Societies, Mumbai and Others. 18 ;
(12) Mazda Constructions Company & Others V/s. Sultanabad
Darshan CHS Ltd. & Others. 19 ;
(13) Swastik Promoters and Developers through partners
Chetan Purushottam Patel & Ors. V/s. Competent
8 2025 SCC OnLine 828
9 2025 SCC OnLine Bom 341
10 2024 SCC OnLine Bom 338
11 2024 SCC OnLine Bom 760
12 2023 SCC Online Bom 1102
13 2020 SCC OnLine Bom 316
14 2018 SCC OnLine 19563
15 Writ Petition No. 2082 of 2018 decided on 09th February 2024
16 2016 SCC OnLine Bom 12653
17 2016 SCC OnLine Bom 9343
18 2016 SCC OnLine Bom 6028
19 2013 (2) All MR 278
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Authority District Deputy Registrar of Cooperative
Housing Societies, Mumbai and Others.20 ;
(14) Vasundhara Dhananjay Dongare V/s. The State of
Maharashtra & Others21 ;
(15) Basheera Khanum V/s. The City Municipal Council and
Anr.22 ;
(16) ALJ Residency Cooperative Housing Society V/s. State of
Maharashtra and Ors.23 ;
(17) Shree Chintamani Builders V/s. State of Maharashtra &
Ors.24 and;
(18) Yogesh Jayant Khadilkar V/s. State of Maharashtra and
Ors.25
6. Mr. Thorat, learned Advocate for Respondent No.3 would
submit that Respondent No.2 did not have the jurisdiction to entertain
the Application for Deemed Conveyance and has passed the impugned
Order dated 20.03.2024 without due consideration of the facts and
material on record and hence the impugned order deserves to be set
aside. Respondent No.3 supports the Petitioner (its lessee) and opposes
Respondent No.1.
6.1. He would submit that Section 4 of MOFA requires the
Promoter to enter into registered Agreement for Sale with the flat
purchaser and Section 11 of MOFA requires Promoter to execute Deed
of Conveyance in favour of the organization of flat purchasers. He
would submit that in the present case Respondent No.3 is the owner of
the subject land. He would submit that Petitioner, as its lessee,
20 2025 SCC OnLine Bom 256
21 Writ Petition (L) No. 23095 of 2021
24 2016 SCC OnLine Bom 9343
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constructed commercial units on the subject land and inducted tenants
into those commercial units. He would submit that those tenants
formed the Respondent No.1 Cooperative Housing Society without
permission of the Petitioner nor Respondent No.3, hence Respondent
No.3 cannot be deemed to be a Promoter within the definition of
Section 2(c) of MOFA.
6.2. He would submit that Petitioner, as owner of the structure,
did not execute Agreement for Sale in favour of any of the tenants in
the structure constructed upon the subject land, hence requirement of
Section 4 of MOFA is also not fulfilled.
6.3. He would submit that Respondent No.1 claims that
Respondent No.3 executed Deed of Conveyance dated 25.03.2010 in
respect of Unit / Gala No.3, however this position cannot be accepted
as Respondent No.3 is not the owner of Unit / Gala No.3, neither he
has constructed or developed the said Gala / Unit No.3 and hence he
did not possess any right to convey the same to the tenant. He would
submit that Respondent No.1 - Society claims that Respondent No.3
executed Deed of Confirmation dated 08.12.2010, however this is not
so as perusal of the alleged Deed of Confirmation would show that it is
a fabricated document altogether wherein one page bears registration
stamp of the year 2011 whereas all other pages bear registration stamp
of the year 2010. He would submit that both documents are on the
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face of record false and fabricated and hence do not create any legal
right and obligations in favour of Respondent No.1. He would submit
that Respondent No.3 has never executed any Conveyance Deed or
Confirmation Deed either in favour of the Respondent No. 1 - Society
and or in favour of any member of the Society, hence requirements of
Section 11 of MOFA are clearly not fulfilled as alleged by Respondent
No.1.
6.4. He would submit that the Competent Authority was not
possessed of jurisdiction to entertain Respondent No.1's application for
Deemed Conveyance, since members of Respondent No.1 - Society are
mere statutory tenants of Petitioner, inducted by the Petitioner as
tenants who do not possess ownership right in their respective Gala /
Unit and therefore the present Petition be allowed and the impugned
Deemed Conveyance order be set aside.
7. I have heard Mr. Kamat learned Senior Advocate for
Petitioner, Mr. Pagare, learned Advocate for Respondent No. 1 and Mr.
Thorat, learned Advocate for Respondent No. 3 and the learned
Government Pleader and with their able assistance perused the record
of the case. Submissions made by the learned Advocates at the bar
have received due consideration of the Court.
8. At the outset, principal question for determination is whether
Respondent No.2 Competent Authority has on the basis of the material
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placed on record erred in granting Certificate of Deemed Conveyance
to Respondent No.1 - Society? It is seen that genesis of the dispute
begins with execution of Lease Deed dated 08.05.1963 between the
Original Owner and Respondent No.4 who subsequently has assigned
the remainder of the period of lease by Deed of Assignment dated
24.08.1966 to the Petitioner. Subsistence of this lease is the first limb
of Petitioner's argument. Admittedly thereafter Petitioner constructed a
ground plus 2 storey building structure and inducted 23 tenants
(members of the Society) therein in 23 Units / Galas as its statutory
tenants since long. This position is undisputed. It is seen that
aforementioned Deed of Assignment is not appended to the Petition
neither it was ever disclosed and produced before Respondent No.2.
However reference to both the aforementioned documents of 1963 and
1966 do find place in the purported Conveyance Deed dated
25.03.2010 relied upon by Respondent No.1. It is thus admittedly seen
from the flow of title as argued by Respondent No.1 - Society before
Respondent No.2 for seeking conveyance and appended at Exhibit "L"
page No. 168 to the present Petition that Petitioner is the subsisting
lessee of Respondent No.3 in respect of the subject land and is the
owner of the structure standing thereon. Hence it is an admitted
position that Respondent No.4 (Original Owner) assigned leasehold
rights to Respondent No.3 who further assigned remainder of the same
leasehold rights to Petitioner. Next it is an undisputed position that
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Petitioner constructed the ground plus 2 storey structure and inducted
23 tenants (members of the Society) as its statutory tenants therein
which position is not denied by Respondent No.1. Thus Petitioner is
the owner of the structure occupied by the tenants (members) which
position is not denied by Respondent No.1. In these facts, attention is
drawn to a decision of this Court in the case of Dinkar S. Vaidya v/s.
Ganpat S. Gore & Ors. (Supra) which is relied upon by Mr. Kamat to
apply the doctrine of dual ownership of Petitioner to the facts of the
present case. Paragraph Nos. 39 to 40B are relevant and reproduced
hereunder:-
"39. At first blush the question appears to be quite simple; but it
has got to be answered in the context of two legal positions:
(i) that the doctrine of dual ownership is recognised in India
meaning thereby that there is no presumption that the owner of
the land is also the owner of the structure standing on the land. 'A'
is the owner of the land. He may let out the same to 'B'. 'B' may
construct a structure on the same and let out the same to 'C'. 'A'
the owner of the land does not automatically become the owner of
the structure constructed by 'B'; and that there are rent restriction
laws in India, most of which prohibit tenant subletting the
premises let out to him. In any event this is the position which
obtains in the cities of Maharashtra under the Bombay Rent Act.
40. The answer to the question as to whether 'C' who is the tenant
of the structure, automatically becomes tenant of 'A', the owner of
the land, has got to be decided in the context of these two legal
positions.
The question can be decided:
(a) in the light of authorities, and
(b) by discussion of first principles.
40A. Firstly I will deal with the authorities having bearing upon
this question. The first authority is the judgment of the Division
Bench decided by Patel and K.K. Desai, JJ., in S.R. Shetty v. P.N.
Kulabawala, C.R.A. No. 1511 of 1960, decided on 21-11-1962, as
mentioned above. The facts of that case may be briefly stated as
follows:--
40B. One Kolabawala was the owner of an open plot of land which
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he let out to one Gangawal. Gangawal constructed structures on
the same, which structures were let out by him to S.R. Shetty,
proprietor of Popular Covering Works. Kolabawala filed a suit
against Gangawal for recovery of possession of the plot of land
after removal of the structures and a decree for recovery of
possession was passed in that suit against the said Gangawal.
When Kolabawala tried to execute that decree, S.R. Shetty, the
tenant of the structure, obstructed. The contention of the
obstructionist was that though he was a tenant in respect of the
superstructure, he was the sub-tenant in respect of the land
beneath the superstructure. He further contended that upon the
eviction decree having been passed against Gangawal, he, S.R.
Shetty, had become direct tenant of Kolabawala by virtue of the
provisions of Section 14 of the Rent Act This contention was
negatived by the trial Court and the decree of the trial Court was
confirmed by the Division Bench. In support of the said contention
of the obstructionist the ruling of the Supreme Court in Mrs.
Dossibai N.B. Jeejeebhoy v. Khemchand Gorumal, 64 Bom LR 256 :
(AIR 1966 SC 1939), was relied upon. While dealing with this
argument and contention, the Division Bench of this Court held
that as per the ruling of the Supreme Court what is held is that the
Rent Act applies as between a landlord and a tenant where the
land is let for the purposes of a structure, since, ultimately, that
structure is intended to be used either for residence, business or
trade etc. But this Court held that merely because the Rent Act
applies to a lease in respect of an open plot of land it did not mean
that the tenant of the structure ipso facto became the sub-tenant in
respect of the same. This is what the Division Bench observed in
that behalf:
"It does not, however, decide that it after a structure is
built and a tenant has been let into it by the original
tenant, who built the structure, the tenant of the
structure becomes, only for this reason, a sub-tenant of
a portion of the land. It is almost impossible to accept
the suggestion and for obvious reasons. In the present
case, the structure consists only of a ground floor.
However, there may be cases where, the structure may
consist of several floors, and if there are several
tenants, one sitting on top of another, it will be
impossible by any amount of ingenuity for any Court to
say of what portion of the land a particular tenant is a
sub-tenant. In our view, therefore, the learned trial
Judge was justified in the conclusion to which he
reached":
The practical difficulty quite unnecessarily invited by holding that
the tenant of the structure became automatically sub-tenant of the
land beneath the structure is, therefore, fully highlighted by the
said judgment of the Division Bench."
9. Thus from the above it is clearly seen that ownership of land
and ownership of structure constructed thereon can vest in different
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parties. In the present case, Respondent No.3 owns and is possessed of
the subject land as owner / superior lessor whereas Petitioner is its
lessee of the land and owns the right, title and interest in the ground
plus 2 storey structure which it has constructed thereon. This position
stands undisputed.
10. Record in the present case shows that Original Owner i.e.
father of Respondent No.3 filed RAE & R Suit No. 318 / 1217 of 1985
seeking eviction of the Petitioner and its tenants (member of the
Society) however during pendency of the RAE & R Suit, the Original
Owner expired and his legal heirs were substituted and impleaded as
Plaintiff in his place. It is seen from the order dated 07.08.2007 on the
Certified Copy of the Suit Plaint appended as Exhibit 'G' at page No. 88
to the Petition that C.A of the Plaintiff therein filed withdrawal
praecipe which was accepted by the Court and the Presiding Judge
disposed of the RAE & R Suit for want of further prosecution. Record
shows that no Deed of Settlement, Deed of Surrender, Decree of
competent Court or any other such document to the effect of
Petitioner's surrender its leasehold right along with its ownership right
in the structure thereon was ever arrived at between the parties as
alleged by Respondent No.1. It is seen that it is a figment of
imagination of Respondent No.1 that Petitioner's right were terminated
or came to an end enabling the Competent Authority to award Deemed
Conveyance to Respondent No.1 in such alleged facts. It is proven by
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documentary evidence that Petitioner admittedly has a valid and
subsisting assignment of the lease in the subject land and ownerhsip of
the structure constructed thereon. It is seen that absence of any cogent
or relevant document showing Petitioner's settlement of the RAE & R
Suit and surrender of its leasehold right in the subject land along with
its ownership right in the structure standing thereon prima facie
creates an encumbrance on the title of the subject land and hence the
submission that Petitioner had settled the RAE & R Suit with
Respondent No.3, surrendered its leasehold right in the subject land as
well as its ownership right, title and interest in the ground plus 2
storey structure constructed thereon and only Respondent No.3 was
fully possessed of the subject land and structure and was therefore
capable of executing the Deed of Conveyance dated 25.03.2010 along
with the alleged Deed of Confirmation dated 08.12.2010 leading to
awarding Deemed Conveyance cannot be countenanced and accepted
at all. Respondent No. 2 has not considered this position and has given
a complete go-bye to the same.
11. It is the case of Respondent No.1 that since Respondent
No.3 executed Deed of Conveyance dated 25.03.2010 Petitioner ceased
to be lessee of Respondent No.3 and is now the lessee of Respondent
No.1. I am afraid I cannot accept this submission and position as
legally tenable in the above facts and circumstances as also status of
the members of Respondent No. 1 since there is absolutely no material
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produced on record in the form of Decree from any competent Court or
any Deed / document declaring termination of there tenancy rights
neither is there any notice / communication from Respondent No.3
informing Petitioner about termination of Petitioner's long standing
leasehold right in the subject land and or tenancies with members of
Respondent No.1 - Society. After perusal of the lease deed it is seen
that its tenure expires after 20 years but in that case Petitioner will be
a lessee holding over in view of the compromise in the RAE & R Suit
between Respondent No. 3 - Landlord and the Petitioner. However in
so far as the structure housing the tenant / members is concerned,
admittedly it belongs to the Petitioner as owner.
12. It is seen that since there is an encumbrance upon the
subject land as Petitioner's ownership in the structure constructed on
the subject land subsists and is not considered by the Competent
Authority, Respondent No.3 is clearly precluded from executing any
Conveyance Deed or any other document to transfer any right, title
and interest in the subject land and in the structure therein.
Respondent No. 1 has relied upon the Deed of Confirmation dated
18.12.2010 which is a registered document however on perusal of the
said document it is seen that all pages of the said document bear
registration stamp of the year 2010 except but one page i.e. internal
page No.127 of the Deed of Confirmation which bears registration
stamp of the year 2011. This raises a very serious question and doubt
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as to the veracity of the said Deed of Confirmation dated 18.12.2010.
A document cannot contain registration stamp of one year on one page
and registration stamp of another year on all other pages. Therefore
filing of such Deed of Confirmation dated 18.12.2010 by Respondent
No.1 and the same being accepted leads to, prima facie grave fraud
being played upon Respondent No. 2 and this Court cannot allow the
same to subsist. No reasonable explanation, rather no explanation at
all is offered by the Counsel and Advocate of Respondent No.1 after
being repeatedly asked by this Court as to how such registration
stamps of two different years are affixed on the internal pages of the
Deed of Confirmation dated 18.12.2010, thus raising a grave suspicion
that it is prima facie a forged and fabricated document which was
filed to merely comply with the provisions of MOFA to hoodwink all
concerned and obtain the Certificate of Deemed Conveyance. It is
shocking to the core that Respondent No.2, the Competant Authority
has also turned a blind eye to this fact and accepted the said document
as true and correct which speaks volumes of the exercise undertaken
by the Competent Authority and raises serious questions on the due
process of law adopted while considering Applications for Deemed
Conveyance.
13. It is seen that Section 111 and Section 114 of the Transfer of
Property Act, 1882 cannot apply to the facts of the present case as they
were never pleaded before Respondent No.2 therefore these objections
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cannot be raised before this Court by Respondent No.1. That apart, it is
seen that Petitioner's lease with Respondent No.3 was in subsistence
during the hearing of the Deemed Conveyance Application and it
subsists till date hence it is Respondent No.3 who ought to have raised
these objections and Respondent No.1 is precluded from raising the
same before me.
14. Another serious issue or lapse noted prima facie by the Court
is that Respondent No.1 filed Deemed Conveyance Application before
Respondent No.2 and annexed the prescribed documents in support of
its application. It is seen that documents annexed thereto are the Deed
of Conveyance dated 20.03.2010 and Deed of Confirmation dated
08.12.2010. It is seen that none of these documents comply with the
requirements of Section 4 of MOFA which elucidate requirement of
Agreement of Sale to be executed between the Promoter and flat
purchasers. It is seen that individual Conveyance Deeds were executed
between Respondent No.3 and Petitioner's tenants despite provision of
Section 4 of MOFA being clear in its wording that Agreement for Sale
is to be executed between the owner / Promoter and flat purchasers.
Respondent No.3 admittedly is not the owner of the structure and it is
the Petitioner who is admitted owner of the structure. It is argued by
Respondent No. 1 that wording of recitals of Deed of Confirmation
dated 18.12.2010 make it an Agreement for Sale as contemplated by
Section 4 of MOFA and further Respondent No.2 in paragraph No.8 of
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his order dated 20.03.2024 has held that Respondent No.3 sold Units
in the said structure to Petitioner's tenants by entering into Agreement
for Sale with the Unit purchasers as per provisions of MOFA 1963 and
the said agreements are as per MOFA Act. However perusal of the
same would show that the recital merely states that the party/s thereto
failed to appear for registration within the time limit prescribed under
Section 4 of MOFA. Hence mere recital does not confer status of
Agreement for Sale as contemplated by Section 4 of MOFA on the
Deed of Conveyance dated 25.03.2010 which is executed unilaterally
merely because such term is used in Section 4 of MOFA and so used in
the recital. Hence lacunae in compliance of statutory requirements laid
down in Section 4 of MOFA for grant of Certificate of Deemed
Conveyance remain unfulfilled.
15. It is trite law that Application for Deemed Conveyance for
land with structure thereon require Commencement Certificate,
building plan approved by competent / planning authority and
Architect Certificate is required to be annexed to the Application. It is
seen that in the present case, Commencement Certificate was never
produced before Respondent No.2, hence Respondent No.2 ought to
have considered absence of Commencement Certificate which, for the
sake of argument, would imply that the structure upon the subject land
is illegal and constructed without requisite approvals and permissions
from the planning authority i.e. MCGM.
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16. A third serious lapse clearly ignored by Respondent No.2, the
Competent Authority is the building plan approved by the competent /
planning authority which is a necessary mandatory pre-condition for
grant of Deemed Conveyance. In the present case, it is clearly seen that
Petitioner constructed a ground plus 2 storey structure upon the
subject land admeasuring 2,443 square meters housing the tenants
(members of the Society) however Respondent No.1 has appended and
filed building plan in its Deemed Conveyance Application appended at
Exhibit - "F" on page No.85 of the Petition which pertains to a ground
plus one storey structure constructed upon the adjoining land bearing
i.e. CTS No. 498B admeasuring 427 square meters. Thus a completely
different plan of the structure is placed before the Competent
Authority i.e. Respondent No.2 for seeking deemed conveyance which
is blindly accepted in the present case.
17. It is further seen from the building plan filed by Respondent
No.1 that there is no stamp of acceptance or approval by the MCGM
affixed thereon. Therefore, Respondent No.1 has managed to obtained
Deemed Conveyance Certificate from Respondent No.2 on the basis of
a building plan pertaining to a structure which is not constructed on
the subject land neither does the alleged building plan relied upon
pertains to the subject land or the structure thereon and the CTS
Number and measurements completely differ from that of the structure
on the subject land. When repeatedly asked about this lapse and the
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correct building plan, learned Counsel and Advocate of Respondent
No.1 are unable to give any answer to the Court and are evasive in
their reply by repeatedly relying upon the alleged unilateral Deed of
Confirmation and Conveyance which are alluded to hereinabove.
Respondent No.2 failed to observe such glaring deficiencies in
Respondent No.1's application for deemed conveyance and therefore
ought to have rejected the application seeking Deemed Conveyance
Certificate. When such deficiencies are prima facie seen and when
asked repeatedly to the Advocate for Respondent No.1 there is no valid
explanation forthcoming to overcome such drastic failure. Respondent
No.1 is unable to put forth any valid explanation to such deficiencies
which is writ large as fraudulent on the face of record and equally
colluded by Respondent No.2 for reasons best known to him.
18. It is Respondent No.1's case that Respondent No.3 executed
Deed of Conveyance dated 29.08.2009 with Respondent No.1 thereby
conveying the subject land along with the structure (ground plus 2
storey) ground plus 2 storey thereon to Respondent No.1. It is seen
that this Deed of Conveyance dated 29.08.2009 is not even a registered
document as per Section 17 of the Registration Act, 1908 and hence it
cannot have any legal standing or validity neither can any party act
upon the same. It is seen that this Deed of Conveyance dated
29.08.2009 was never produced before Respondent No.2 neither was
such case pleaded before Respondent No.2 at the time of hearing of
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the Application for Deemed Conveyance and it was produced before
this Court only when the veracity of the 2010 Deed of Conveyance was
gone into by me prima facie by questioning the alleged incorrect
registration number and stamp on one of the internal pages of the said
document. To overcome that hurdle in the course of arguments,
Respondent No.1 produced the unregistered document of 2009. This
new document of 2009 would itself prima facie suggest that it is a
forged and fabricated document on the face of record. Perusal of the
entire record shows that there is not a singular reference or pleading to
this unregistered Deed of Conveyance dated 29.08.2009 neither the
said Deed of Conveyance dated 29.08.2009 finds reference in the
subsequent Deed of Conveyance dated 25.03.2010 and Deed of
Confirmation dated 18.12.2010 the statutory notice dated 03.03.2023.
Hence prima facie a very serious doubt is cast on the legality, veracity
and tenability of this 2009 unregistered document which surfaces for
the first time today as also the conduct of Respondent No.1. The
conduct of Respondent No.1 clearly borders as dishonesty and fraud in
the present case.
19. It is seen that the stand taken by Respondent No.1 before
this Court substantially differs from the stand taken before Respondent
No.2 - Competent Authority and such differing and inconsistent
positions prima facie show the fraudulent and malafide intention of
Respondent No.1 to obtain the Certificate of Deemed Conveyance at
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any cost by hook or by crook to the exclusion of the subsisting rights of
Petitioner in the subject land, in the subject structure and Respondent
No.3 as superior lessor. It is prima facie proven from the record that
the documents relied upon by Respondent No.1 as appended to the
Application seeking Deemed Conveyance are not only erroneous but
fraudulent altogether. Such ambiguous stance of Respondent No.1
does not inspire any faith of this Court in its cause as such conduct
does not bring out any clarity neither does it give transparent answers
to the questions and deficiencies raised in the present matter. Record
shows numerous deficiencies in the stand adopted by Respondent No.1
and the documents annexed to the Application for Deemed
Conveyance as observed and alluded to hereinabove rendering the
impugned Order granting Deemed Conveyance passed by Respondent
No.2 unsustainable in law and hence it deserves to be quashed and set
aside.
20. In view of my above observations and findings, the
impugned order dated 20.03.2024 passed by Respondent No.2 is
clearly unsustainable, bad in law and is therefore quashed and set
aside. Certificate of Deemed Conveyance dated 20.03.2024 granting
Deemed Conveyance in favour of Respondent No.1 - Society stands
cancelled. All actions taken pursuant to the said Certificate are also
quashed and set aside. Resultantly, the Petition succeeds and is
allowed in terms of prayer clause (a).
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21. Writ Petition is allowed and disposed in the above terms.
[ MILIND N. JADHAV, J. ]
22. After the Judgment is pronounced in open Court, Ms.
Yewale, learned Advocate appearing for Respondent No. 1 persuades
the Court to stay the effect of the judgment for 8 weeks in order to
enable Respondent No. 1 to test its validity and legality in the Superior
Court. However in view of my observations and findings and blatant
misconduct of Respondent No. 1 which has been alluded to by me in
the aforesaid findings, I am not inclined to accede to the request made
by Respondent No.1. Hence, the request for stay of this Judgment is
rejected.
[ MILIND N. JADHAV, J. ]
Ajay
HARSHADA by HARSHADA
HANUMANT SAWANT
SAWANT Date: 2026.02.11
14:52:45 +0530
