[Cites 4, Cited by 0]
Bombay High Court
Mahesh Pratap Ramchandra Singh And Ors vs District Sub Registrar Coopertive ... on 9 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:11449
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.16311 OF 2025
Mahesh Pratap Ramchandra
Singh & Others ... Petitioners
ATUL V/s.
GANESH
KULKARNI District Sub-Registrar, Cooperative
Digitally signed by
ATUL GANESH Societies & Others ... Respondents
KULKARNI
Date: 2026.03.09
14:42:42 +0530
Mr. Akshay Ptil with Ms. Diveka Madekar and Mr.
Aimaan Shaikh for the petitioners.
Mr. Y.D. Patil, AGP for respondent Nos.1 and 2-State.
Ms. Nilam Vete for respondent No.3.
CORAM : AMIT BORKAR, J.
DATED : MARCH 9, 2026
P.C.:
1. The present writ petition is instituted at the instance of five
purchasers who claim to have acquired their respective premises
through promoter (Respondent Nos. 4 to 6). The petition is
directed against an order of unilateral deemed conveyance granted
by the Competent Authority in exercise of powers under Section
11(3) of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act,
1963. The petitioners call in question the legality and propriety of
the said order on the ground that the Competent Authority
proceeded to grant deemed conveyance without considering the
rights and interests of the petitioners who claim to be lawful
purchasers in the project.
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2. The principal grievance of the petitioners arises from their
claim that they are occupants of premises situated in two buildings
standing on land bearing Survey No. 30, Hissa Nos. 8/1, 8/2, 2, 3
and 1/4 admeasuring about 3082 square meters at Village Virar,
Taluka Vasai, District Thane. According to the petitioners, they
purchased their respective premises from respondent No. 4 by
executing agreements for sale dated 30 October 1992 under
Section 4 of the MOFA 1963. It is their case that the said
agreements contained specific stipulations recognising the rights of
flat purchasers. In particular, reliance is placed on clauses (f), 12
and 13 of the agreement, which according to the petitioners confer
upon the flat purchasers the right to form a cooperative housing
society or other appropriate legal body of purchasers for the
purpose of managing and administering the property. The
petitioners contend that these contractual stipulations recognise
and preserve their statutory rights contemplated under the scheme
of MOFA 1963.
3. The petitioners further contend that respondent No. 3
initiated proceedings before the Competent Authority by filing an
application under Section 11 of the MOFA 1963 seeking grant of
deemed conveyance. According to the petitioners, the said
application was filed and prosecuted without impleading the
petitioners as parties to the proceedings. It is their specific case
that the Competent Authority ultimately granted a unilateral
deemed conveyance certificate in favour of respondent No. 3 in
respect of the land beneath the building in which the petitioners
are occupying their respective premises. The petitioners assert that
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such an order directly affects their rights and interests. According
to them, the impugned order has the effect of depriving them of
their statutory right to form a society under Section 10 of the
MOFA 1963 and also affects their entitlement to seek independent
unilateral deemed conveyance in accordance with law. On this
basis, the petitioners submit that they possess sufficient locus to
challenge the impugned order. They further contend that in
proceedings under Section 11 of the MOFA 1963, persons whose
rights in the property are directly affected constitute necessary
parties and must be afforded an opportunity of hearing. In the
present case, the petitioners submit that the proceedings were
conducted without their participation, which renders the
impugned order legally unsustainable. It is therefore urged that
the order passed by the Competent Authority deserves to be
quashed and set aside and the matter requires to be remitted back
to the Competent Authority for fresh consideration after granting
due opportunity of hearing to the petitioners. The petitioners also
allege that respondent No. 3 obtained the order by suppressing
material facts, inasmuch as the existence of two buildings standing
on the said plot was not disclosed before the Competent Authority.
According to the petitioners, such suppression goes to the root of
the matter and furnishes an additional ground for setting aside the
impugned order.
4. At the first sight, the argument advanced on behalf of the
petitioners appears attractive. The submission proceeds on the
footing that the agreements executed in their favour confer upon
them a right to independently form a society and therefore they
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ought to have been heard before the grant of deemed conveyance.
However, once the Court examines the agreement in a careful and
closer manner, the strength of the argument begins to weaken. The
true intention of the parties can only be gathered by reading the
relevant clauses of the agreement as a whole. For this purpose it
becomes necessary to refer to clause (f) and clause 12 of the
agreement executed by the builder in favour of the petitioners.
These clauses define the scheme within which the flat purchasers
were expected to organise themselves and also indicate the
manner in which the property was ultimately intended to be
conveyed. The clauses read as follows:
"(f) The Builders are entering into several Agreements
similar to this Agreement with several parties who may agree
to take acquire premises in the said plot of land on
ownership except and subject to such modification as may be
necessary or considerable desirable or proper by the
Builders, with a view ultimately that the Purchaser of the
various premises alongwith occupants of the other premises
in the said plot of land shall form a Cooperative Housing
Society or Limited Company the said Plot of land together
with the Building thereof will be conveyed as herein
provided.
12. The flat/shop/Industrial Gala along with other Purchaser
of flats/shops/Industrial Galas in the Building shall join in
forming and registering the Society or Limited Company to
be known by the name as Surya Darshan. The
flat/shop/Industrial Gala purchaser will also from time to
time sign and execute the application for registration and or
membership and other papers and documents necessary for
the formation and the registration of the Society or Limited
Company and for becoming a member, including the bye-
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laws of the proposed society and duly fill in, sign and return
to the Builders within 7 days of the same being forwarded by
the Builders to the flat/shop/Industrial Gala Purchaser. So as
to enable builders to register the organisation of the
flat/shop/Industrial Gala Purchaser under Section 10 of the
said Act within the time limit prescribed by Rule 8 of the
Maharashtra Ownership Flats (Regulation of the Promotion
of Construction, Sale, Management and Transfer) Rules,
1964. No objection shall be taken by the flat/shop/Industrial
Gala Purchaser if any changes or modifications are made in
draft bye-laws or the Memorandum and or Articles of
Association, as may be required by the Registrar of
Cooperative Societies or the Registrar as the case may be, or
any other competent authority."
5. When clause (f) and clause 12 are read together, the
intention behind the agreement becomes reasonably clear.
Undoubtedly, the agreement recognises the statutory scheme
contained in Section 10 of the MOFA 1963, which contemplates
formation of a cooperative housing society or other legal body of
flat purchasers. However, the right so recognised is not absolute in
the manner suggested by the petitioners. The language of clause
(f) shows that the builder had entered into several agreements
with different purchasers in respect of various premises situated on
the same plot of land. The clause further indicates that the
purchasers of all the premises together with occupants of other
premises on the same plot were expected to form a single
cooperative housing society or limited company. The concluding
portion of the clause makes the intention even clearer by stating
that the entire plot of land together with the buildings thereon
would ultimately be conveyed to such collective organisation of
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purchasers.
6. This aspect becomes more significant when one notices the
description of the property contained in the schedule to the
agreement. The schedule refers to the entire plot of land. That plot
corresponds to the very land on which respondent No.3 society has
already been constituted. Thus the agreement itself proceeds on
the basis that the purchasers were to organise themselves
collectively in relation to the entire property and not building wise
or purchaser wise.
7. It is true that clause 12 refers to the formation of a society to
be known as "Surya Darshan". However, while interpreting a
contract, the document must be read as a whole so that its real
intention is gathered. A settled principle of interpretation of
conveyances is that when two clauses appear to be inconsistent,
the Court must attempt to harmonise them. If reconciliation is not
possible, the earlier clause which expresses the intention generally
prevails over the later clause. Applying this principle to the present
case, the controlling intention emerges from clause (f). The later
clause must therefore be read subject to the earlier stipulation.
Once so read, it becomes evident that the agreement contemplated
formation of only one cooperative society in respect of the entire
plot and not multiple independent societies for separate buildings.
Consequently, the right of the petitioners to form an organisation
stands qualified by the arrangement recorded in clause (f), which
envisages a common society of all purchasers on the plot.
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8. It is also an admitted position that respondent No.3 society
has already been formed. The record does not show that the
petitioners took effective steps to form a separate society under
Section 10 of the MOFA 1963 within the time contemplated under
the statutory scheme. As a result, their legal position continues to
remain that of individual purchasers who hold premises under
agreements for sale. The status of a recognised organisation of flat
purchasers, which is contemplated under the Act for seeking
conveyance, has not come into existence in their favour. In such
circumstances the general principle that an existing cooperative
society must be heard in proceedings affecting its rights would not
apply to the petitioners. The petitioners have not constituted
themselves into a society or company capable of asserting
collective rights in the property. Their claim therefore remains at
the stage of individual purchasers.
9. In view of this position, the right claimed by the petitioners
has not matured into a legal entitlement to seek deemed
conveyance. Under the scheme of MOFA 1963, the right to demand
conveyance and the right to apply for deemed conveyance are
normally exercised by the organisation of flat purchasers formed
under Section 10. Such organisation represents the collective
interest of all purchasers in the property. In the present case, that
collective body already exists in the form of respondent No.3
society. Once such a society has come into existence in respect of
the entire plot, individual purchasers cannot separately assert a
parallel right to seek conveyance. The statutory scheme does not
contemplate multiple claims for conveyance in relation to the same
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property by different groups of purchasers. For this reason, the
existence of respondent No.3 society operates as a bar against the
petitioners asserting an independent right of conveyance.
Consequently, the petitioners cannot be treated as persons
aggrieved so as to confer upon them the necessary locus to
challenge the order granting deemed conveyance.
10. Since the petitioners have not demonstrated the existence of
an enforceable legal right in their favour, the question of their
being necessary parties before the Competent Authority does not
arise. The only enforceable right flowing from the agreement in
their favour is the right to participate in the formation of a society
along with other purchasers of premises on the same plot. The
agreement itself envisages such collective organisation. Therefore,
the proceedings undertaken by the Competent Authority at the
instance of the existing society cannot be invalidated merely
because the petitioners, who remain individual purchasers, were
not impleaded in those proceedings.
11. In this view of the matter, the contractual arrangement
between the parties and the statutory scheme under the MOFA
1963 both point towards the formation of a single society
representing the purchasers of the entire plot. That society has
already come into existence in the form of respondent No.3. The
petitioners cannot insist upon an independent right inconsistent
with that arrangement. The only practical course open to them is
to become members of the existing society and thereafter
participate in its management and affairs in accordance with law.
For this reason, the writ petition filed by individual purchasers
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challenging the deemed conveyance cannot be entertained.
12. However, while declining to entertain the petition, it is
necessary to clarify the position of the petitioners so that their
legitimate interests are not prejudiced. If the petitioners apply to
respondent No.3 society seeking membership in accordance with
the relevant statutory provisions and the bye laws of the society,
such request shall be considered in accordance with law. Subject to
fulfilment of the prescribed requirements, the petitioners shall be
admitted as members of respondent No.3 society so that they may
participate in the affairs of the society as flat purchasers forming
part of the same property.
13. The writ petition stand disposed of in above terms. No costs.
(AMIT BORKAR, J.)
