[Cites 6, Cited by 0]
Bombay High Court
Maryland Apartment Co-Op. Housing Soc. ... vs District Deputy Registrar Co-Op. Soc. ... on 24 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:13863
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Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SAYALI CIVIL APPELLATE JURISDICTION
DEEPAK
UPASANI WRIT PETITION NO. 13930 OF 2024
Digitally signed by
SAYALI DEEPAK
UPASANI
Date: 2026.03.24
Maryland Apartment Co-Operative
11:49:45 +0530
Housing Society Limited ... Petitioner
V/s.
District Deputy Registrar,
Co-operative Societies (2),
East Suburban, Mumbai and 117 others Respondents
WITH
WRIT PETITION NO. 13935 OF 2024
Maryland Apartment Co-Operative
Housing Society Limited ... Petitioner
V/s.
District Deputy Registrar,
Co-operative Societies (2),
East Suburban, Mumbai and 117 others Respondents
Mr. Chetan Kapadia, Senior Advocate with Mr. Yuvraj
Singh with Ms. Madhu Rani i/b One Point Legal
Solutions, for the petitioner.
Mr. Hamid D. Mulla, AGP for State-respondent no.1
Mr. Prashant Chavan, Senior Advocate with Ms.
Vrushali Parab i/b Mr. Mehul Shah, for respondent Nos.
5, 90 to 95, 97 to 106, 108 to 111 and 113 to 116.
Dr. Ranjit Thorat, Senior Advocate with Mr. Murari
Madekar, & Mr. Sachin Kudalkar i/n M/s. Madekar and
Co., for respondent no. 3 in both writ petitions.
1
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CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 17, 2026
PRONOUNCED ON : MARCH 24, 2026
JUDGMENT:
1. Since both the present writ petitions involve common
questions of law and arise out of interconnected facts, they are
being heard together and are disposed of by this common
judgment and order.
2. By the present proceedings under Articles 226 and 227 of the
Constitution of India, the petitioner in Writ Petition No. 13930 of
2024 calls in question the order dated 31 October 2014 passed by
Respondent No. 1, namely the District Deputy Registrar, Co-
operative Societies (2), in Application No. 312 of 2013, whereby
the petitioner's request for grant of unilateral deemed conveyance
under the provisions of the Maharashtra Ownership Flats Act was
rejected. Similarly, the petitioner in Writ Petition No. 13935 of
2024 challenges the order dated 18 October 2023 passed by the
same authority in Application No. 54 of 2023, whereby a
subsequent application seeking unilateral deemed conveyance in
respect of the same property was also rejected.
3. The factual matrix giving rise to the present petitions, as set
out by the petitioner, may be briefly stated. By an indenture of
lease dated 16 March 1959, Respondent No. 2 granted a lease in
favour of Respondent No. 3 in respect of a parcel of Government
non-agricultural land together with structures standing thereon,
situated at Sion-Trombay Road, Chembur, admeasuring
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approximately 23,367 square yards. The property is recorded
under CTS No. 1311 of Village Chembur, along with various
corresponding survey and municipal identification particulars. The
names of Respondent Nos. 2 and 3 are reflected in the property
card as lessor and lessee respectively. Respondent No. 2 represents
the original members of the Sandu family, which, with a view to
developing the larger property, constituted Respondent No. 4 as a
committee and internally subdivided the land into three portions,
described as Portions A, B and C. Thereafter, on 14 October 1979,
an agreement was executed between Respondent No. 4, acting as
constituted attorney of the Sandu family, and Respondent No. 8,
whereby development rights in respect of the larger property were
granted to Respondent No. 8, with a further right to purchase the
said property subject to agreed terms and conditions. For the
purpose of development, Respondent No. 4 obtained the requisite
No Objection Certificate under Section 22 of the Urban Land
(Ceiling and Regulation) Act, 1976. Respondent No. 8 thereafter
prepared building plans and submitted the same to the Municipal
Corporation of Greater Mumbai for approval. The plans were
sanctioned, and the Corporation issued the Intimation of
Disapproval and Commencement Certificate. Pursuant thereto, on
29 January 1980, the Municipal Corporation issued the
Commencement Certificate permitting construction of the
proposed building. Respondent No. 8 commenced construction up
to the first floor. Subsequently, by an agreement dated 3 May
1982, Respondent No. 8 assigned its rights, title and interest under
the agreement dated 14 October 1979 to Respondent No. 9, along
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with the partially constructed structure. This transfer was brought
to the notice of Respondent No. 4, which raised no objection.
Thereafter, on 24 May 1986, a tripartite agreement was executed
between Respondent Nos. 4, 8 and 9, along with one Suhas
Shridhar Pethe, whereby Respondent No. 9 was formally
recognised as the developer in respect of Portions A and C. Insofar
as Portion B was concerned, it was agreed that possession thereof
would be handed over to Respondent No. 9 upon relocation of the
factory of Respondent No. 3 and subject to fulfillment of stipulated
conditions. On the same date, i.e. 24 May 1986, a power of
attorney was executed in favour of Respondent No. 9, limited to
Portions A and C. Thereafter, on 10 June 1986, a separate
agreement was entered into between Respondent Nos. 9 and 3 in
respect of Portion B, whereby Respondent No. 9 undertook to
provide alternate accommodation for relocation of the factory, in
consideration of which Respondent No. 3 agreed to hand over
vacant possession of Portion B. Further, by a communication dated
21 November 1987, Respondent No. 9 confirmed that it would not
utilise the floor space index of Portion B while developing Portions
A and C. Respondent No. 9 thereafter completed construction of
the building comprising ground plus three upper floors, consisting
of residential flats, commercial shops and parking facilities. On 4
June 1990, the Municipal Corporation issued the Occupation
Certificate in respect of the completed building. The certificate
recorded approval of the building plans, built-up area statements
and other relevant particulars. Agreements for sale executed in
favour of flat and shop purchasers were duly stamped and
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registered. In the year 1991, the petitioner society came to be
registered under the provisions of the Maharashtra Co-operative
Societies Act, consisting of purchasers of units in the building.
Though Respondent No. 9 claimed to have fulfilled its obligations
under the agreement dated 10 June 1986, possession of Portion
was not handed over by Respondent Nos. 3 and 4.
4. In these circumstances, Respondent No. 9 instituted Suit No.
1543 of 1992 before this Court seeking specific performance of the
agreement dated 10 June 1986 in respect of Portion B and for
consequential relief of possession. In the said suit, Respondent No.
9 took out Notice of Motion No. 1572 of 1992 seeking interim
reliefs. By an order dated 13 July 1992, ad-interim relief was
granted. Subsequently, by order dated 28 November 1995, this
Court confirmed the injunction in terms of prayer clause (b),
thereby restraining Defendant Nos. 1 to 84 from creating third-
party rights in respect of the property described in Exhibit A to the
plaint. It was clarified that the operation of the said order was
restricted to Portion B of the larger property.
5. Thereafter, on 18 August 2013, the petitioner society filed
Application No. 312 of 2013 under Section 11 of the MOFA Act
before Respondent No. 1 seeking issuance of a certificate of
unilateral deemed conveyance in respect of the land and building.
Replies and written submissions were filed by various respondents
between 12 July 2014 and 15 July 2014 opposing the said
application. In opposition, the respondents relied upon the order
dated 28 November 1995 and contended that, in view of the
subsisting injunction and pendency of the civil suit, the application
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for deemed conveyance was not maintainable. The petitioner
asserts that it had no prior knowledge of the said order, as it was
not a party to the suit. By order dated 31 October 2014,
Respondent No. 1 rejected the petitioner's application solely on the
basis of the aforesaid injunction order.
6. Thereafter, upon obtaining copies of the suit proceedings, the
petitioner realised that the injunction was confined only to Portion
B. The petitioner accordingly issued a legal notice dated 17 March
2023 calling upon the respondents to execute conveyance. The
petitioner received replies dated 24 April 2023 and 5 May 2023
from Respondent No. 3, wherein it was contended that the
petitioner was entitled only to a lease and not to conveyance. The
petitioner thereafter obtained an area entitlement certificate dated
19 June 2023 from its architects, confirming its entitlement to
conveyance of the land and building. The petitioner has also been
regularly paying property taxes to the Municipal Corporation. On
24 July 2023, the petitioner filed Application No. 54 of 2023
seeking unilateral deemed conveyance, claiming proportionate
undivided rights in the land corresponding to the constructed area.
Upon receipt of the said application, Respondent No. 1 issued
notices in the prescribed form and conducted hearings. Various
respondents filed their affidavits-in-reply on 14 September 2023
raising objections, including on the issue of maintainability. The
petitioner thereafter filed detailed affidavits-in-rejoinder on 4
October 2023 dealing with the contentions raised by the contesting
respondents. After hearing the parties, Respondent No. 1 closed
the matter for orders on the preliminary issue of maintainability on
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5 October 2023. By the impugned order dated 18 October 2023,
Respondent No. 1 rejected Application No. 54 of 2023, assigning
reasons in support of such rejection. Being aggrieved thereby, the
petitioner has preferred the present writ petitions.
7. Mr. Chetan Kapadia, learned Senior Advocate appearing for
the petitioner, submitted that the members of the Sandu family
had, inter se, constituted a private limited company in the name of
Respondent No. 3 with the object of retaining control over the title
of the subject land under different legal forms. It was contended
that the alleged lease in favour of Respondent No. 3 was, in
substance, a self-serving arrangement, as the lessor and lessee
were essentially the same entities operating under different guises.
According to him, such an arrangement was devised to continue
ownership of the land indirectly. On this premise, it was urged that
the transaction cannot be treated as a genuine lease, and
consequently, the petitioner is entitled to conveyance conferring
ownership rights rather than a mere leasehold interest. Learned
Senior Counsel further submitted that Suit No. 1543 of 1992
pertains exclusively to Portion "B" of the larger property and
involves disputed questions arising out of contractual rights, which
could not have been conclusively adjudicated by Respondent No. 1
in the proceedings for deemed conveyance. He pointed out that
the pleadings and proceedings of the suit, as well as the Notice of
Motion, were placed before Respondent No. 1, and a plain reading
thereof clearly indicates that the suit is confined to enforcement of
contractual rights concerning Portion "B". It was further
emphasized that the order dated 28 November 1995 expressly
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clarifies that the injunction granted therein operates only in
respect of Portion "B". Therefore, it was submitted that there was
no subsisting restraint in law against grant of conveyance in
respect of Portion "A" in favour of the petitioner.
8. It was further contended that the mere pendency of the suit
could not have been treated as a valid or lawful ground to defeat
or postpone the petitioner's statutory entitlement under Section 11
of the Maharashtra Ownership Flats Act, read with Rule 9 of the
Rules framed thereunder. According to the learned Senior Counsel,
the statutory right to seek conveyance is independent and cannot
be curtailed on account of a civil dispute limited to a distinct
portion of the property, namely Portion "B".
9. It was next submitted that if the reasoning adopted in the
impugned order is accepted as a precedent, it would lead to
serious consequences, inasmuch as any co-operative housing
society could be deprived of its statutory right to conveyance
merely on account of inter se disputes between landowners and
developers, or between multiple developers. Such an approach, it
was urged, would defeat the very object of the statutory scheme
under the MOFA.
10. Learned Senior Counsel submitted that the observations
made by the Competent Authority in the order dated 31 October
2014 were occasioned solely due to the petitioner's inability, at
that stage, to demonstrate that the injunction order dated 28
November 1995 was confined only to Portion "B". It was urged
that such inability cannot be held against the petitioner,
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particularly when the petitioner seeks to enforce a statutory right.
It was further submitted that the petitioner had no knowledge of
the order dated 28 November 1995 at the relevant time and lacked
the means to establish that no restraint operated upon Portion "A".
The petitioner was not a party to the suit or the Notice of Motion
and was unaware of the nature of the dispute between the
respondents. It was also contended that the respondents had not
produced the complete record of the suit, including the reliefs
claimed therein, before Respondent No. 1.
11. Learned Senior Counsel submitted that the petitioner's
building is constructed entirely on Portion "A" of the larger
property, in respect of which no injunction or stay was ever
operative. In such circumstances, Respondent No. 1 was not
precluded from granting a certificate of unilateral deemed
conveyance. It was urged that the case squarely warranted exercise
of such power. Since the respondents failed to execute conveyance
despite repeated demands, the petitioner was constrained to file a
fresh application seeking deemed conveyance.
12. It was further submitted that the order dated 31 October
2014 was passed solely on the basis of the injunction order and
without proper appreciation of its limited scope. Upon
subsequently obtaining the relevant court records, the petitioner
realised that the injunction was confined to Portion "B". It was
contended that the earlier order was thus founded on a
misrepresentation of facts and is liable to be treated as a nullity.
On this basis, it was urged that the bar of delay or laches would
not apply, and the impugned orders deserve to be quashed and set
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aside.
13. Per contra, Dr. Ranjit Thorat, learned Senior Advocate
appearing for Respondent No. 3, submitted that Application No.
312 of 2013 filed by the petitioner under Section 11 of the MOFA
came to be rejected by Respondent No. 1 on 31 October 2014, and
the said order has attained finality. It was pointed out that the
petitioner did not challenge the said order for nearly ten years and
accepted the same. Instead, the petitioner filed a fresh Application
No. 54 of 2023 on 24 July 2023 seeking identical reliefs. The said
application was also rejected by order dated 18 October 2023. It
was submitted that, at the time of adjudication of the subsequent
application, the earlier order dated 31 October 2014 remained
operative, binding and conclusive. It was contended that the
present challenge to the earlier order by filing Writ Petition No.
13930 of 2024 is an afterthought, intended to overcome the
consequences of failure to challenge the order within a reasonable
time. It was further submitted that Respondent No. 3 had filed an
affidavit-in-reply dated 12 July 2014 in the earlier application,
placing on record not only the injunction order dated 28
November 1995 but also raising several factual and legal
objections. The said affidavit was duly served upon the petitioner,
and therefore, the petitioner had full knowledge of the same. It
was contended that the petitioner failed to controvert the said
objections. It was further submitted that the order dated 31
October 2014 was passed after considering the totality of
circumstances, including the pendency of litigation in respect of
the larger property, and not merely on the ground of the
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injunction.
14. Learned Senior Counsel submitted that the order dated 31
October 2014 continues to hold the field and has not been set
aside. The petitioner did not challenge the said order for a
considerable period, and the same remained binding even during
the pendency of Application No. 54 of 2023. It was contended that
if Respondent No. 1 had taken a view contrary to the earlier order
while deciding the subsequent application, it would have resulted
in conflicting decisions on the same subject matter by the same
authority. It was further submitted that the total area of the
property bearing CTS No. 1311 and its sub-divisions aggregates to
approximately 19,535 square metres. The plinth area of the
petitioner's building is about 552 square metres. Despite this, the
petitioner sought deemed conveyance of a substantially larger
area, namely 3,822.42 square metres in the later application and
3,989 square metres in the earlier application. It was pointed out
that no explanation was offered for the variation in the claimed
area. It was further submitted that Portion "A", on which the
building stands, admeasures about 3,485 square metres, and the
petitioner's claim exceeds even this extent, thereby indicating an
inflated and untenable claim. It was lastly submitted that by virtue
of the Indenture of Lease dated 16 March 1959, Respondent No. 3
is in possession of the entire larger property, including Portions "A",
"B" and "C", admeasuring approximately 19,535 square metres,
along with structures thereon. It was contended that the lease is in
the nature of a perpetual lease, and Respondent No. 3 enjoys the
status of a protected tenant under the applicable rent control
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legislation. On these grounds, it was urged that the writ petitions
deserve to be dismissed.
REASONS AND ANALYSIS:
15. I have heard the learned Senior Advocates for the parties
and have carefully gone through the record. The controversy is
narrow in form, but the consequences are wide. The petitioner
seeks unilateral deemed conveyance in respect of the land and
building. The respondents resist the claim by pointing out the long
delay in challenging the first rejection, the finality of the earlier
order, and the nature of the disputes already pending between the
parties. After considering the matter in full, I find that Writ Petition
No. 13930 of 2024 must fail on the ground of laches, and Writ
Petition No. 13935 of 2024 must fail on the ground of res judicata.
The petitioner, however, shall have liberty to pursue its remedy
before the competent civil court, if so advised, in accordance with
law.
16. According to the petitioner, the building in which the
members are residing is constructed only on Portion "A" of the
larger property. It is further pointed out that the order dated 28
November 1995, passed in the civil suit, was not for the entire land
but was limited only to Portion "B". From this, the petitioner
argues that the Competent Authority made a mistake when it
rejected the application on 31 October 2014 by treating the
injunction as if it covered the whole property.
17. In facts of the case, the Court has to examine the conduct of
the petitioner. whether the petitioner approached the Court within
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a reasonable time, and whether after an order has become final,
the same issue can again be brought before the authority by filing
another application. These aspects cannot be ignored, even if some
merit is found in the petitioner's submission.
18. Coming to Writ Petition No. 13930 of 2024, the position
becomes more clear. The petitioner is challenging an order which
was passed on 31 October 2014 in Application No. 312 of 2013.
That order remained unchallenged for almost ten years. During
this long period, the petitioner did not take any steps to question
it. It is difficult to accept that the petitioner had no knowledge
about the rejection, because the order was passed in its own
application. There is also no material to show that the petitioner
was prevented by any sufficient cause or legal difficulty from
approaching the Court earlier. The explanation now given is that
only later the petitioner obtained copies of the suit papers and
then understood that the injunction was only for Portion "B". Even
if this explanation is taken at face value, it still leaves a gap. It
does not explain why the petitioner remained inactive for such a
long duration. A person who claims a statutory right is expected to
act with some urgency. Waiting for years together and then
approaching the Court disturbs the balance, because the other side
proceeds on the footing that the matter has attained finality.
19. The principle of laches, in this context, is not some rigid or
technical rule. If a party allows an order to remain unchallenged
for years, and during that time the other side adjusts its position
on the basis of that order, then it would be unfair to reopen the
issue after a long delay. Courts, therefore, expect that a person
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must come within a reasonable time. In the present case, the
petitioner had the rejection order since 2014. It did not challenge
it. Instead, it chose to file another application in the year 2023.
That later step cannot wipe out the earlier inaction. The delay is
too long and not properly explained. Therefore, the present
challenge to the 2014 order is clearly belated. It falls within the
mischief of delay and laches.
20. The petitioner has also tried to argue that the earlier order
was based on misrepresentation, as the true scope of the injunction
was not properly brought on record. But even this argument does
not improve the situation. Even if the petitioner later came to
know certain facts in a better manner, that by itself cannot revive a
challenge which had become stale over time. The law does not
favour a party who first accepts an order by remaining silent, then
takes a second chance by filing a fresh application, and only after
failing there, comes back to challenge the old order. Such conduct
shows lack of diligence. It weakens the claim for relief under
Article 226, which is always discretionary in nature. For these
reasons, this Court is of the clear view that Writ Petition No. 13930
of 2024 cannot be entertained and deserves to be dismissed on the
ground of laches alone.
21. The position in Writ Petition No.13935 of 2024 appears
slightly different on the surface, but when it is examined carefully,
it is in substance the same as the earlier situation. Here, the
petitioner again approached the Competent Authority by filing
Application No. 54 of 2023. In that application, the relief which
was claimed was essentially the same as what was earlier asked in
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Application No. 312 of 2013. The prayer was again for unilateral
deemed conveyance of the same land and building. The
foundation of the claim did not change in any meaningful manner.
The parties involved also remained the same in substance.
Therefore, even though the application number and the year were
different, the core dispute continued to be identical.
22. Once an application on the same issue has been decided, and
that decision has reached finality because it was not challenged in
time, the law does not permit the same party to come again before
the same authority and ask for the same relief on the same set of
facts. If such a course is allowed, there will be no end to litigation.
A party can keep filing repeated applications until it gets a
favourable order. That is not how the legal system works. Finality
of decisions is an important part of justice. It gives certainty and
stability to legal relations. In the present case, after the order
dated 31 October 2014 was passed, the matter stood concluded at
that level. The petitioner could not have bypassed that position by
simply filing a fresh application in the year 2023.
23. In Faime Makers Private Ltd. v. District Deputy Registrar,
(2025) 5 SCC 772 the Supreme Court in the context of
applicability of Section 11 of CPC to MOFA proceedings under
Section 11 has reiterated two important points. First, findings of a
quasi judicial body cannot be reopened in a collateral manner or in
a second round between the same parties. Second, even if the
earlier decision contains an error of fact or law, it still binds unless
it is set aside by a higher forum. A coordinate or successor
authority cannot simply take a different view on the same issue.
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In the present case, these conditions are clearly satisfied. The
earlier application was decided. The relief of deemed conveyance
was refused. The petitioner did not challenge that decision in time.
Therefore, the same issue cannot be raised again in another
application.
24. When the petitioner filed Application No. 54 of 2023, it was,
in effect, trying to reopen the same controversy which had already
been concluded in 2014. This is not permissible in law. The bar
meant to prevent repeated and unnecessary litigation. Filing a
second application on the same facts is not an acceptable
substitute. Therefore, the second application itself was not
maintainable. Once that is so, the order dated 18 October 2023, by
which the Competent Authority rejected Application No. 54 of
2023, cannot be said to be incorrect on this ground. The authority
could not have ignored the earlier final order and proceeded to
grant the same relief again. Doing so would have resulted in
conflicting decisions on the same issue. Hence, the rejection of the
second application does not call for interference.
25. Learned Senior Advocate for the petitioner has strongly
argued that the earlier rejection order was based on a wrong
understanding of the injunction order passed in the civil suit, and
therefore such an order should not bind the petitioner at all. This
submission, if it had been raised at the proper time, would have
required serious consideration. Because if an authority proceeds on
a misunderstanding of a court order, then such an error can affect
the entire decision. However, the difficulty for the petitioner is not
only about correctness of the earlier order, but about the manner
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in which the petitioner has acted thereafter. Once the order dated
31 October 2014 was passed, the petitioner allowed it to remain
unchallenged for many years. During this long period, the order
gained finality. In such a situation, the petitioner cannot avoid the
effect of that order by simply filing another application and asking
the authority to reconsider the same issue again. Law does not
permit such indirect method.
26. At the same time, it is necessary to observe that the
petitioner's grievance is not entirely without substance. The
dispute between the parties involves questions about the larger
property, the nature of the lease, the internal arrangements
between the parties, the development rights, and also the exact
effect of the injunction order passed in the civil suit. These are not
issues which can be decided only on the basis of limited material
placed before the Competent Authority. Such questions may
require detailed evidence, examination of documents, and proper
trial. Proceedings under the MOFA are summary in nature and are
not always suitable for deciding complicated questions of title and
competing rights between several parties. Therefore, while
rejecting the present writ petitions, it cannot be said that the
petitioner has no remedy at all.
27. For this reason, the dismissal of these writ petitions should
be understood in its proper context. The petitioner is not denied
relief because its claim is wholly untenable. The petitions are
dismissed because of the manner in which the remedies have been
pursued. The first writ petition fails because there is long and
unexplained delay in challenging the earlier order. The second writ
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petition fails because the same issue had already been finally
decided and cannot be reopened by filing a fresh application. If the
petitioner still believes that it has a valid claim in law, the proper
course is to approach the civil court, where all issues relating to
title, rights and obligations can be examined in detail.
28. In view of the foregoing discussion, the following order is
passed:
(i) Writ Petition No. 13930 of 2024 is dismissed;
(ii) Writ Petition No. 13935 of 2024 is also dismissed;
(iii) It is clarified that this Court has not examined the
merits of the rival claims of title and entitlement in detail.
The petitioner is at liberty to institute appropriate civil
proceedings for adjudication of its rights, if so advised, in
accordance with law;
(iv) All contentions of the parties in that regard are kept
open;
(v) There shall be no order as to costs.
(AMIT BORKAR, J.)
