[Cites 11, Cited by 0]
Bombay High Court
Kanhayialal Madhavji Thakkar vs The Competent Authority And Ors. on 20 January, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:2562-DB
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Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8769 OF 2014
SAYALI Kanhaiyalal Madhavji Thakkar,
DEEPAK
UPASANI Aged 73 years, of Mumbai,
Digitally signed by
SAYALI DEEPAK
UPASANI
Indian Inhabitant, residing at 8,
Date: 2026.01.20
14:02:22 +0530 Bhaveshwar Chhaya, in front of
Rajawadi Garden,
Ghatkopar (E), Mumbai-400 077
...Petitioner
V/s.
1. The Competent Authority
Ownership Flats (Regulation of the)
appointed under the Maharashtra
Promotion of Construction, Sale
Management And Transfer) Act,
1963 and the District Registrar, Co-
operative Societies(2), East
Suburban, Mumbai and having his
Office at 201, 2nd Floor, Konkan
Bhavan, Navi Mumbai-400 614.
2. M/s. Parekh Market Premises
Co.operative Society Ltd.,
Parekh Market, M.G.Road,
Ghatkopar East, Mumbai-400 077.
3. Shri Padmanabh Builders Ghatkopar,
Through their Partners
(a). Shri Mansukhlal P. Parekh,
(b). Shri Rameshchandra M.Parekh,
(c).Shri Pravinchandra Atmaram,
"Kaustubh, Tilak Ghatkopar East,
Mumbai-400077.
4. The State of Maharashtra,
1
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through the office of Government
Pleader, Appellate Side, High Court,
Bombay. ...Respondents
WITH
INTERIM APPLICATION (ST) NO.21796 OF 2025
IN
WRIT PETITION NO.8769 OF 2014
Kanhaiyalal Madhavji Thakkar, Applicant(Original
...Petitioner)
In the matter between
Kanhaiyalal Madhavji Thakkar ...Petitioner
V/s.
The Competent Authority and Others ... Respondents
WITH
CIVIL APPLICATION NO.139 OF 2020
AND
CIVIL APPLICATION NO.138 OF 2020
AND
INTERIM APPLICATION NO.3752 OF 2019
Mr. Virendra Tulzapurkar, Senior Counsel with Manoj
Shirsat, Kishor Shah, Shamant Satiya and Priyansh
Jain, for Petitioner.
Ms. S. R. Crasto, AGP for State - Respondent No. 1.
Mr. Ashish Kamat, Senior Advocate with Kunal Mehta
with Amit Shroff i/by Harish Shroff, for Respondent
No.2.
Mr. Vatsal Shah with Devansh Bheda and Rahul
Agrawal, for Respondent No.3.
CORAM : AMIT BORKAR, J.
RESERVED ON : JANUARY 17, 2026
PRONOUNCED ON : JANUARY 20, 2026
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JUDGMENT.:
1. The writ petition challenges the deemed conveyance order
dated 27 May 2014 and the certificate issued in respect of land
bearing Survey No.77 Hissa No.10 and corresponding CTS Nos.
4648 to 4667 admeasuring in aggregate 3728.70 square meters at
Ghatkopar (East) Mumbai referred to as the said property.
2. Relevant facts are as follows. In 1979 the said property
consisted of land admeasuring 4399.25 square yards being 3678
square meters with a structure comprising ground plus one floor
facing M G Road. The structure was constructed by Kanji Khatau
Trust. On the ground floor of Wing D there were nine shops let out
to nine tenants by Kanji Khatau Trust and on the first floor there
were four offices sold on ownership basis.
3. On 8 February 1979 Kanji Khatau Trust conveyed the said
property to respondent No 3 Padmanabh Builders. The nine
tenanted shops in Wing D also stood transferred to respondent No
3. The tenants attorned to respondent No 3. Respondent No 3
developed the said property in phases. In Phase I and Phase II
respondent No 3 constructed three wings being Wing A and Wing
B comprising ground plus three floors and Wing C comprising
ground plus two floors. Respondent No 3 sold the units in Wings A
B and C on ownership basis to various allottees who later formed
respondent No 2 society. Wings A and B contained sixteen
residential units. The remaining units in Wing B were commercial
units. According to Respondent No 2 the said building was
constructed by respondent No 3 and was known as Parekh Market
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and that the construction was carried out in two phases.
4. After completion of Phase I and Phase II respondent No 3
entered into a development agreement with the petitioner to allow
the petitioner to develop the balance area of 2455 square feet
which accoding petitioner is for phase IV also. A power of attorney
was executed for this purpose.
5. On 8 June 1990 respondent No 3 executed a special power
of attorney in favour of the petitioner authorising the petitioner to
prosecute or defend proceedings pertaining to the said property.
The power of attorney was subject to recital 3 which restricted the
development rights of the petitioner to 2455 square feet of FSI
which petitioner disputes.
6. On 11 November 1991 respondent No 3 executed articles of
agreement with the petitioner by which the petitioner purchased
nine tenanted shops on the said property for the consideration
mentioned therein. This did not enlarge the development rights of
the petitioner. The agreement recorded that the petitioner was yet
to utilise FSI of 2455 square feet.
7. On 5 June 1992 respondent No 2 society was formed by the
flat purchasers of the said buildings constructed in Phase I and
Phase II. On 3 December 1992 respondent No 3 and the petitioner
executed a deed of confirmation confirming the agreement dated
11 November 1991 by which the nine shops were conveyed in
favour of the petitioner.
8. In the year 2000 the petitioner completed construction of
Phase III being Wing E comprising thirteen offices. According to
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Respondent No 2 the petitioner utilised the entire FSI of 2455
square feet.
9. On 27 March 2000 respondent No 3 discovered that the
petitioner had constructed in excess of 2455 square feet.
Respondent No 3 cancelled the power of attorney as well as the
development agreement dated 1 October 1989.
10. On 28 March 2000 respondent No 3 filed a suit seeking a
declaration that the development agreement dated 1 October 1989
was valid subsisting and binding.
11. Respondent No 3 instituted Suit No 1330 of 2000 against the
petitioner seeking to restrain further construction and seeking
recovery of amounts received by the petitioner on account of sale
of excess premises. In Notice of Motion No 1108 of 2000 the
petitioner stated before this Court that no further construction
would be carried out on the suit property without permission of
the Court.
12. The petitioner filed a counter-claim in the said suit seeking a
declaration that the development agreement dated 1 October 1989
was valid subsisting and binding. Respondent No 2 was not a party
to the suit.
13. In Notice of Motion No.1615 of 2005 in Counter Claim No
2508 of 2004 the petitioner sought liberty to carry out further
construction. This Court rejected the reliefs. The petitioner filed
Appeal No.799 of 2005 against the dismissal of the motion. The
appeal was dismissed. The petitioner filed a special leave petition
challenging the order dated 5 December 2005 of the Division
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Bench. The same was dismissed.
14. In Notice of Motion No.1934 of 2005 in the counter-claim
respondent No 3 sought dismissal of Counter Claim No 2508 of
2004 inter alia on the ground of limitation. The notice of motion
was made absolute and the counter-claim was dismissed as barred
by limitation. The petitioner challenged the said order in Appeal
No.274 of 2010. The appeal was dismissed by a Division Bench of
this Court. The petitioner filed Special Leave Petition No.6910 of
2011. By order dated 21 November 2014 the Special Leave
Petition was dismissed.
15. On 19 September 2013 respondent No 2 filed an application
before respondent No 1 for deemed conveyance of the suit
property. Respondent No 2 submits that in the deemed conveyance
application the basis of the petitioner's claim was adequately
disclosed. The application set out relevant clauses of MOFA. It
narrated that the agreement dated 11 November 1991 for
purchase of nine shops contemplated ultimate conveyance to the
society. It recorded that the petitioner constructed Phase III in or
around 2000 comprising thirteen offices.
16. According to Respondent No.2, the application recorded that
under the agreement dated 1 October 1989 the petitioner was
conferred rights post completion of Phase I and Phase II only to the
extent of 2455 square feet.
17. According to Respondent No 2 the conveyance application
complied with MOFA and the Rules. Form VII under Rule 12 of the
MOFA Rules requires annexing an agreement for sale with one flat
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purchaser. The application annexed an agreement dated 27
January 1982 between Padmanabh and Kumbhanis. In the writ
petition it is admitted that all MOFA agreements are identical.
18. The petitioner filed a reply to the deemed conveyance
application opposing the same only on the ground that the
application was not accompanied by all agreements.
19. The petitioner filed a sur-rejoinder stating that he was
willing to grant conveyance. His only contention was that he had a
right to complete part of Phase III and Phase IV.
20. On 27 May 2014 respondent No.1 passed the impugned
order granting deemed conveyance in favour of respondent No 2.
21. Shri. Virendra Tuljapurkar, learned Senior Advocate for the
petitioner, submitted that the application for confirmation of
deemed conveyance was incomplete. He submitted that all
documents required under Section 11(3) of the MOFA Act were
not submitted. He submitted that the agreement between the
promoter and the purchaser was not registered. According to him,
such an unregistered agreement could not be relied on for
determining rights under the MOFA Act. He submitted that on the
date of the impugned order, construction of Phase III was
incomplete and construction of Phase IV had not commenced. He
submitted that deemed conveyance in respect of land beneath
Phases III and IV could not be granted in favour of the respondent
society. He submitted that the adjudication done by the authority
was erroneous.
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22. Referring to Clause 27 of the agreement between the
promoter and the purchaser, he submitted that the promoter was
obliged to execute the conveyance only after completion of
construction of the entire phase. He submitted that the authority
failed to consider this contractual stipulation.
23. Referring to the order of this Court in Interim Application (L)
No.30513 of 2025 dated 16th October, 2025, he submitted that the
effect of the said order was only to bar the remedy and not to
extinguish the petitioner's right to raise a defence regarding his
subsisting right to continue construction of Phases III and IV. He
submitted that the findings in the said order were prima facie and
not binding. To support his contention that limitation bars the
remedy and does not extinguish the right, he relied on the
judgment of the Supreme Court in Punjab National Bank v.
Surendra Prasad Sinha, 1993 Supp (1) SCC 499 . To support his
contention that limitation does not extinguish a defence, he relied
on the judgment of the Hon'ble Supreme Court in Shrimant
Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi. (2002) 3
SCC 676.
24. To submit that the competent authority could not grant
deemed conveyance in respect of land earmarked for further
construction beyond the area of the society, he relied on the
judgment of this Court in S. and M. Enterprises v. Palazzo Building
No.1 CHSL, 2025 SCC Online Bom 2760. He submitted that the
impugned order is unsustainable and deserves to be set aside.
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25. In reply, Shri Kamat, learned Senior Advocate for respondent
No.2, submitted that the petitioner's claim for further development
beyond Phase III already stands concluded prima facie by
judgment and order in Interim Application (L) No.30513 of 2025.
He submitted that this Court has held that the petitioner cannot
claim development rights in respect of land admeasuring 3578
square meters and cannot carry out further development. He
submitted that in view of these observations, the petitioner has no
subsisting right to claim further development. He submitted that
Rule 9 of the MOFA Rules prescribes a fixed period for seeking
deemed conveyance from the date of registration of the society. He
submitted that if the promoter does not convey the property within
four months from registration of the society, the promoter cannot
oppose the application for deemed conveyance. He submitted that
all purchasers of Phase III have become members of respondent
No.2 society. He submitted that in the counter-claim filed by the
petitioner and in the suit filed by Padmanabh, the Court held
under Order VII Rule 11 that the counter-claim seeking
enforcement of Phase IV was barred by limitation. He submitted
that this finding has attained finality and the petitioner has no
right to raise any such claim.
26. Referring to the MOFA Rules, he submitted that only one
agreement with a purchaser is required to be annexed with the
application, and it is not necessary to annex all agreements. He
submitted that Clause 27 of the agreement is void as it contradicts
Rule 9 of the MOFA Rules. He submitted that the competent
authority under Section 11 of the MOFA Act does not have
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jurisdiction to examine the validity of the agreement. He submitted
that Phase III stands completed and the entire FSI of 2455 square
feet has been consumed by the petitioner. He submitted that the
impugned order is legal and proper.
27. Learned counsel for respondent No.3 submitted that
respondent No. 3 has already filed a writ petition challenging the
impugned order before the Division Bench. He submitted that
respondent No. 3 supports the submissions of the petitioner.
28. This Court has heard learned counsel for the parties and has
perused the record. The contest raises narrow legal issues as to
whether the deemed conveyance application complied with the
statutory prescription under the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management
and Transfer) Act and Rules, whether the authority had jurisdiction
to grant the relief applied for, and whether the petitioner retains
any subsisting right that can block conveyance of land beneath
Phases III and IV.
29. The petitioner contends the application was incomplete
within the meaning of Section 11(3) of the MOFA Act because all
documents were not filed. The petitioner relies on the absence of
several sale agreements and on the contention that the agreement
relied upon was not registered. Section 11(3) and Rule 12 require
compliance with certain formalities and the annexure of an
agreement for sale with one purchaser in Form VII. The Rules
contemplate that an agreement with one flat purchaser be
annexed; they do not mandate annexing every single agreement
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entered into by the promoter with each purchaser. The statutory
scheme uses Form VII as a medium to show representative
compliance. In that light the authority was entitled to act on the
documents before it if those documents fulfilled the requirement of
Form VII and otherwise disclosed the title background. The
authority is not bound to reject an application because a promoter
did not annex every private agreement. Where the applicant
annexes the agreement contemplated by the Rules and the
application otherwise shows compliance, the technical non-
production of every agreement cannot be a ground to refuse
deemed conveyance. The petitioner's submission that omission of
some agreements rendered the entire application incomplete is
therefore without merit.
30. The petitioner contends that the agreement relied upon was
unregistered and therefore could not be considered for
adjudicating rights under the MOFA Act. This submission cannot
be accepted in view of Section 4A of the MOFA Act. Section 4A
expressly provides that an agreement for sale entered into under
Section 4(1), even if unregistered, may be received as evidence of
a contract for specific performance, as evidence of part
performance under Section 53A of the Transfer of Property Act,
1882, or as evidence of any collateral transaction not required to
be effected by a registered instrument. The legislative intent is
clear that non-registration does not render such agreements void
or incapable of being relied upon. Registration under the
Registration Act may affect certain aspects of enforceability interse,
but it does not defeat the statutory process under MOFA where a
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society seeks deemed conveyance. The competent authority under
Section 11 is required to examine whether the statutory conditions
for conveyance are satisfied. It is not required to adjudicate
disputes on registrability. If the agreement placed before the
authority discloses the entitlement of flat purchasers to conveyance
and if statutory requirements are otherwise met, non-registration
does not invalidate the authority's consideration of such
agreement. If the promoter seeks to rely on lack of registration as a
bar, the promoter must demonstrate how non-registration leads to
fatal non-compliance with MOFA. In view of Section 4A, the
authority was entitled to rely on the agreement and other material
annexed to the application.
31. The petitioner contends that Phase III was incompletely
constructed on the date of the impugned order and that Phase IV
remains unbuilt; hence the land under those phases could not be
conveyed to the society. That submission depends on two linked
propositions. One is that the promoter retains an unconditional
right to complete later phases and that such right can be enforced
so as to prevent conveyance of land already built and occupied.
The other is that any contractual clause which requires conveyance
upon completion of all phases is valid. Both propositions cannot
stand in law. The MOFA scheme protects flat purchasers who form
a society. Rule 9 prescribes a definite period within which
conveyance must be executed; unless the parties agree otherwise
the law fixes that period as four months from registration of the
society. The thrust of the statute is to prevent promoters from
retaining control of land on vague promises of future development.
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A promoter cannot convert a plan for future construction into a
license to withhold conveyance indefinitely. If the society
representing a completed phase fulfills statutory conditions, the
promoter's speculative plans for further construction do not defeat
the society's right. To allow otherwise would subvert the statutory
purpose.
32. The petitioner relies on Clause 27 of the promoter's
agreement to contend that the promoter was obliged to execute
conveyance only after completion of the entire phase. This is
essentially a contractual challenge. A contractual clause cannot
override a statutory mandate. Rule 9 is expressed in mandatory
terms. The word "period" in Rule 9 denotes a fixed and definite
span of time. Contractual terms which seek to postpone
conveyance until an uncertain future event, such as completion of
all phases or of an entire layout, are inconsistent with the statutory
scheme and are void to the extent of that inconsistency.[See.
Flagship Infrastructure Ltd. v. The Competent Authority, 2025 SCC
Online Bom 1240, and Neelkanth Heights Cooperative Housing
Societies Association Ltd. v. Abhinav Real Estate Pvt. Ltd., 2025
SCC OnLine Bom 21346]
33. Second, even if Clause 27 was valid as between promoter
and purchaser, the competent authority under Section 11 is
entitled to examine whether the terms of the agreement offend the
statutory scheme. The authority need not accept a contractual
clause that operates to frustrate the purchaser's statutory right.
Applying these principles, Clause 27 cannot operate to indefinitely
delay conveyance of the land which pertains to the completed
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phase.
34. The petitioner relies on orders of this Court which, he
contends, extinguish the remedy but not the right to continue
construction. Learned counsel relies on the distinction between
remedy and substance of right, and places reliance on
pronouncements that limitation ordinarily bars remedy while
leaving some substantive right. That distinction is accurate in
appropriate contexts. But the point is whether any subsisting right
remains enforceable in the face of earlier judicial findings and
orders. The record shows that the petitioner's counter-claim
seeking further construction was dismissed as barred by limitation.
That dismissal attained finality upon dismissal of the appeals and
the special leave petitions noted in the record. Where a claim for
development is held barred by limitation by a competent court, the
promoter cannot thereafter resurrect that claim in collateral
proceedings so as to defeat a statutory conveyance application.
Final adjudication that a claim is time-barred is final for purposes
of the dispute now before this Court arising out deemed
conveyance proceedings. The petitioner's plea that limitation
affects remedy but leaves some residual right does not help when
the court of competent jurisdiction has held the claim to be time-
barred. The promoter cannot continue with substantive rights that
the court has finally declined to recognize.
35. Learned counsel for respondent No. 3 supports the
petitioner. That support does not alter the legal position.
Respondent no. 3's petition is pending wherein it is open for him
to raise permissible legal contentions.
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36. For these reasons the writ petition is without merit. The
impugned order dated 27 May 2014 granting deemed conveyance
in favour of Respondent No. 2 is affirmed.
37. The petitioner shall pay costs of Rs.25,000/- to Respondent
No.2 society within six weeks from today. If the petitioner fails to
do so, Respondent No. 2 shall be entitled to recover the said
amount as arrears of land revenue.
38. In view of disposal of the writ petition, all pending
interlocutory applications stand disposed of accordingly.
(AMIT BORKAR, J.)
