[Cites 4, Cited by 0]
Bombay High Court
Momin Zulfikar Kasam vs Pooja Co Op. Hsg. Soc. Ltd And Ors on 24 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:13856
wp-9162-2025.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SHABNOOR
WRIT PETITION NO.9162 OF 2025
AYUB
PATHAN
Digitally signed
by SHABNOOR
Momin Zulfikar Kasam
AYUB PATHAN Aged : 57 yeas, Occu: Business,
Date: 2026.03.24
11:48:15 +0530 Having address at 1901 Fatemid Co-op. Hsg.
Society Ltd., Jogeshwari (West),
Mumbai - 400 102 ... Petitioner
V/s.
1. Pooja Cooperative Housing Society Ltd.,
Near Hoechst Quarters, Amar Nagar,
Off. L. B. S. Marg, Mulund (West),
Mumbai - 400 082.
2. Hoechst Marion Roussel Limited.,
(Now Known as Sanofi India Ltd.,)
Hoechst House, Nariman Point, 193
Backbay Reclamation, Mumbai - 400 021.
3. The Competent Authority & District Deputy
Registrar, Cooperative Societies (2),
East Suburban, Mumbai
Room No.201, Konkan Bhavan,
C.B.D. Belapur, Navi Mumbai 400 614. ... Respondents
Mr. Pradeep Thorat A/W Ms. Aditi Naikare, Mr. Aniesh
Jadhav, Ms. Priyanka Bhoite for the petitioner.
Ms. Nikita Vardhan A/W Ms. Srushtee Panhale i/by
Kanga & Co. for respondent No. 2.
Mr. Karl Tamboly i/by Mr. Jayesh M. Joshi for
respondent No.3 in WP/9162/2025.
Mr. Y. D. Patil, AGP for the respondent / State.
1
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CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 10, 2026
RESERVED ON : MARCH 24, 2026
JUDGMENT:
1. By the present Petition instituted under Article 227 of the
Constitution of India, the petitioner calls in question the legality
and correctness of the Order dated 29 May 2025 passed by the
Competent Authority and District Deputy Registrar, Cooperative
Societies - 2, East Suburban, Mumbai in Application No. 68 of
2024. By the said Order, the Competent Authority has proceeded
to grant a Certificate of Unilateral Deemed Conveyance in favour
of respondent No.1. The petitioner, therefore, seeks setting aside of
the said order on grounds as urged in the Petition.
2. The facts giving rise to the present Petition, in brief, are that
the petitioner, Mr. Momin Zulfikar Kasam, claims to be the owner
of a portion of a larger land parcel. respondent No.1 is Pooja Co-
operative Housing Society Ltd., hereinafter referred to as "the
Society". Respondent No.2 is Hoechst Marion Rousell Ltd., the
erstwhile owner of the larger property, and respondent No.3 is the
Competent Authority and District Deputy Registrar, Cooperative
Societies - 2, East Suburban, Mumbai, who has passed the
impugned Order. The larger property admeasures 36,325 sq. mtrs.
and is described by various Survey and CTS numbers, both old and
new, situate at Village Nahur, Taluka Kurla, Mumbai Suburban
District. Out of the said larger property, the subject matter of the
present Petition is a portion admeasuring 2400 sq. mtrs., forming
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part of Plot No. 404 and corresponding CTS numbers, as more
particularly described in the Petition.
3. It is petitioners case that on 28 January 1999, respondent
No.2 executed an Agreement for Sale in favour of respondent No.1
Society in respect of Building No. 5. Subsequently, on 12 August
1999, respondent No.1 Society obtained additional FSI to the
extent of 10,500 sq. ft. for construction of three additional floors
on the existing structure, pursuant to an arrangement between
respondent No.2, Lok Housing, and the Society. Thereafter, on 02
February 2000, respondent No.2 executed an Indenture of Lease-
cum-Conveyance in favour of respondent No.1 Society for a period
of 999 years in respect of the subject property admeasuring 2400
sq. mtrs., along with conveyance of the building consisting of stilt
plus four upper floors, comprising 16 flats with a total built-up
area of 1299.76 sq. mtrs. Thereafter, on 24 March 2000,
respondent No.2 executed a Supplemental Agreement in favour of
respondent No.1 Society for the limited purpose of rectifying the
area mentioned in Clause 4 of the Indenture of Lease-cum-
Conveyance. Respondent No.1 Society thereafter entered into
arrangements with its members and allotted the constructed flats
to them. The Society places reliance on certain alleged Agreements
purportedly executed under the provisions of the Maharashtra
Ownership Flats Act, 1963. However, it is the case of the petitioner
that the additional flats constructed were not sold by way of
conveyance, but were merely allotted to members. It is also on
record that on 13 April 2023, respondent No.2 executed a
Registered Indenture of Conveyance in favour of the petitioner,
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thereby conveying land admeasuring 27,605.51 sq. mtrs. out of the
larger property. The portion so conveyed to the petitioner includes
the land on which the building of respondent No.1 Society stands.
4. On 12 August 2024, respondent No.1 Society preferred
Application No. 68 of 2024 before respondent No.3 seeking
issuance of a Certificate of Unilateral Deemed Conveyance in
respect of the subject property. It is not in dispute that the
petitioner was not impleaded as a party to the said proceedings at
the initial stage. By Order dated 09 September 2024, the
Competent Authority allowed Application No. 68 of 2024 and
granted a Certificate of Deemed Conveyance in favour of
respondent No.1 Society. Aggrieved thereby, the petitioner
approached this Court by filing Writ Petition No. 2596 of 2025
challenging the grant of Deemed Conveyance. By Order dated 25
February 2025, this Court allowed the said Writ Petition, set aside
the earlier Order of the Competent Authority, and remanded the
proceedings for fresh consideration in accordance with law.
Pursuant to the remand, respondent No.1 amended Application
No. 68 of 2024 and impleaded the petitioner as a party.
Respondent No.1 contended that respondent No.2 had entered
into Agreements for Sale with individual purchasers under Section
4 of the Maharashtra Ownership Flats Act, 1963, and placed
reliance upon an Agreement dated 28 September 2000 executed in
favour of one Mr. P. S. Doraiswamy by the Society, in respect of Flat
No. 601. A plain reading of the said Agreement indicates that
Clause 7 stipulates that the flat shall remain the property of the
Society and that the allottee is merely entitled to occupation and
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membership. Clause 11 further clarifies that the Agreement shall
not be construed as a grant, demise, or assignment of the flat. It is
also material that neither the petitioner nor respondent No.2 are
parties to the said Agreement relied upon by respondent No.1.
5. The petitioner, upon being impleaded, appeared before the
Competent Authority and filed his reply opposing the Application.
The principal contention raised by the petitioner was that the
Application for Deemed Conveyance was not maintainable in law,
inasmuch as the land admeasuring 2400 sq. mtrs. had already
been demised in favour of the Society and the building had already
been conveyed, and therefore no further conveyance could be
sought. Notwithstanding the aforesaid objections, the Competent
Authority, by the impugned Order dated 29 May 2025, proceeded
to allow Application No. 68 of 2024 and granted a Certificate of
Deemed Conveyance in respect of the subject property in favour of
respondent No.1 Society. Being aggrieved by and dissatisfied with
the said Order, the petitioner has instituted the present Petition
invoking the supervisory jurisdiction of this Court.
6. Mr. Thorat, learned Advocate appearing on behalf of the
petitioner, submitted that there exists no agreement between the
promoter and the purchasers as contemplated under Section 4 of
the Maharashtra Ownership Flats Act, 1963, and consequently, the
proceedings initiated under Section 11 of the said Act were not
maintainable in law. He invited attention to the fact that
respondent No.2 had, on 2 February 2000, executed an Indenture
of Lease-cum-Conveyance for a period of 999 years in respect of
the subject property admeasuring 2400 square meters in favour of
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respondent No.1 Society, along with conveyance of the building
consisting of stilt plus four upper floors having a built-up area of
1299.76 square meters. He further submitted that respondent No.2
had thereafter executed a conveyance in favour of the petitioner in
respect of land admeasuring 27,605.51 square meters. On this
basis, it was contended that in the absence of a valid agreement
under Section 4 of MOFA, the application for deemed conveyance
was liable to be rejected.
7. Per contra, Mr. Tamboly, learned Advocate appearing for
respondent No.1 Society, placed reliance upon the Indenture of
Lease-cum-Conveyance dated 2 February 2000 and, in particular,
the clauses contained therein which confer rights to grant, sell,
transfer, and convey the building and the demised premises
admeasuring 2400 square meters in favour of purchasers or
lessees. He submitted that the building standing on the said land
was constructed and thereafter dealt with in a manner attracting
the character of a promoter, thereby giving rise to statutory
obligations under Section 11 of the Maharashtra Ownership Flats
Act, 1963. Developing the said submission further, learned counsel
invited attention to the specific clauses in the Lease-cum-
Conveyance, which record that the vendors had granted,
conveyed, and transferred to the purchaser or lessee the entirety of
Building No.5 consisting of stilt plus four upper floors, having a
built-up area of 1299.76 square meters, together with the land
appurtenant thereto. It was submitted that, in exercise of the
authority flowing from the said conveyance dated 2 February
2000, respondent No.1 Society had entered into agreements with
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individual members. He also referred to the recitals in the
subsequent conveyance executed in favour of the petitioner by his
vendor, contending that the said document contains specific
stipulations casting an obligation upon the petitioner to make
available to respondent No.1 Society the land together with the
building. Particular reliance was placed on Clause (r), read with
other relevant clauses, which makes reference to Building No.5
and the land admeasuring 2400 square meters already demised in
favour of respondent No.1 Society for a period of 999 years.
8. Learned counsel further invited attention to Clause (bb) of
the conveyance executed in favour of the petitioner, to contend
that the petitioner had agreed to purchase the entire property from
the vendor subject to an obligation to convey portions of the land
in favour of various co-operative housing societies described in the
Fifth Schedule to the said conveyance, for a consideration of Rs.1
crore. It was submitted that the Fifth Schedule specifically
identifies the portion of land underneath Building No.5
admeasuring 2400 square meters as being demised to respondent
No.1 Society for a period of 999 years. On this basis, it was urged
that the present Petition is devoid of merit and is liable to be
dismissed. In support of the aforesaid submissions, reliance was
placed upon the judgment of this Court in Haresh Vijaysinh Bhatia
& Others vs. District Deputy Registrar & Others , 2025 SCC OnLine
Bom 1981. It was submitted that once the petitioner has stepped
into the shoes of the original owner and promoter in respect of the
land beneath the building, he cannot retain any independent right
inconsistent with the statutory scheme, and is bound to convey his
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right, title, and interest in favour of respondent No.1 Society.
9. In rejoinder, learned Advocate for the petitioner submitted
that the alleged agreement dated 26 June 1999, purportedly
executed under the provisions of the Maharashtra Ownership Flats
Act in favour of one of the members of respondent No.1 Society,
was never produced before the Competent Authority. It was further
submitted that the respondent No.1 Society had declined the
request of the petitioner to carry out a private survey of the
property. On these grounds, it was contended that the petitioner is
entitled to the reliefs as prayed for.
REASONS AND ANALYSIS:
10. I have given thoughtful consideration to the rival
submissions and to the registered documents placed on record.
The real question is whether respondent No.1 Society had a lawful
basis to seek deemed conveyance under Section 11 of the
Maharashtra Ownership Flats Act, 1963, and whether the
petitioner, who later purchased a substantial portion of the larger
property, can resist that claim by saying that there was no
agreement under Section 4 of the said Act.
11. The first point raised by the petitioner is that there was no
agreement between the promoter and the flat purchasers as
required under Section 4 of MOFA, and for that reason, the
application under Section 11 itself could not have been
entertained. It is correct that Section 4 speaks about a written
agreement between promoter and purchaser. Still, the Court
cannot read that provision in isolation and ignore what has
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actually happened on the ground and what documents are already
executed between the parties. Here, the material on record shows
that respondent No.2 had already executed, on 2 February 2000, a
Lease-cum-Conveyance in favour of respondent No.1 Society. This
document clearly mentions the land area of 2400 square meters. It
also clearly describes the building, being stilt plus four upper
floors, with specific built-up area. Even the period of 999 years is
clearly stated. These details show that the parties had completed a
registered document. Therefore, to say that the Society had no
right only because a separate Section 4 agreement is not shown in
a particular format may defeat pupose of the Act.
12. It is also necessary to remember the purpose of MOFA. The
Act is made to protect flat purchasers and housing societies. It is
intended to prevent a promoter or any person claiming through
him from holding back conveyance or creating obstacles.
Therefore, when the documents already show that the land and
building were effectively transferred in favour of the Society
through a long-term lease and conveyance, the absence of a
separate agreement cannot defeat that right. The Court has to see
the real nature of the transaction.
13. On the other hand, the submissions of respondent No.1
Society carry more force. The Lease-cum-Conveyance dated 2
February 2000 clearly records that the vendors granted and
transferred Building No.5 together with the land appurtenant to it.
The area of 2400 square meters is specifically mentioned. They
are clear recitals in a registered document. They amount to
admission of rights. They show that the Society was given a legal
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interest in both land and building. It was not merely allowed to
occupy. If the land was already demised for 999 years and the
building was already conveyed, then the later contention of the
petitioner that the Society has no right to seek conveyance
becomes difficult to accept. It goes against the very documents
forming the title.
14. The position becomes even more clear when one looks at the
conveyance dated 13 April 2023 executed in favour of the
petitioner. The petitioner did not purchase the land in a
unrestricted manner. The conveyance itself contains recitals which
show that certain portions were already committed. Clause (r) and
related clauses refer to Building No.5 and to the land of 2400
square meters already given to respondent No.1 Society for 999
years. Further, Clause (bb) shows that the petitioner agreed to
purchase the property subject to obligations, including the
obligation to convey portions of land to societies mentioned in the
Fifth Schedule. That schedule specifically includes the land
underneath Building No.5.
15. This means the petitioner had full notice of the existing
arrangement. He cannot now say that the Society has no claim.
When a person purchases property with such recitals, he accepts
those conditions along with the property. The obligation travels
with the land. The petitioner stepped into the position of his
predecessor, but only to that extent and subject to those burdens.
He cannot claim a better right than what was available under the
document itself.
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16. A purchaser cannot ignore what is clearly written in his own
conveyance. If the document says that certain land is already
demised or required to be conveyed to a society, then that
obligation binds him. He cannot later turn around and deny it. His
rights are not independent. They are controlled by the earlier
transactions and by the recitals in his own deed. Therefore, the
argument of the petitioner that the Society has no enforceable
right does not stand on firm ground.
17. The contention regarding non-production of the agreement
dated 26 June 1999 also does not assist the petitioner. The key
documents are already before the Court. The Lease-cum-
Conveyance of 2000 and the later conveyance of 2023 clearly set
out the rights and obligations. These are registered documents.
When such documents clearly show the position, the absence of
another agreement does not change the decision. The Court cannot
ignore clear recitals in registered deeds merely because one
additional document is not produced.
18. Similarly, the issue of private survey is not of much
consequence in this case. The dispute here is not about exact
measurement. The issue is about legal rights arising from
conveyances. Those rights are already recorded in the documents.
A private survey cannot override or alter the contents of a
registered deed. Therefore, refusal to permit such survey does not
affect the validity of the Society's claim.
19. The reliance placed by respondent No.1 on the judgment in
Haresh Vijaysinh Bhatia also supports the same line of reasoning. A
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subsequent purchaser, who derives title from the original owner, is
bound to complete the conveyance including residual rights to
complete ownership in favour of the society. The burden does not
disappear on transfer. It continues and binds the next holder.
20. In view of all this material, it becomes clear that the
Competent Authority has not committed any error. After remand,
the petitioner was given opportunity and his objections were taken
into account. Still, the documents continued to show that
respondent No.1 Society already had recognized rights in respect
of the land and building. The petitioner's title was also subject to
those rights. In such circumstances, the grant of deemed
conveyance cannot be said to be without basis. It is supported by
the record and by the legal position flowing from the documents.
21. For these reasons, I am of the view that the challenge raised
by the petitioner cannot succeed. The contention that there was no
Section 4 agreement is too limited to dislodge the effect of the
registered conveyances. The Society has shown a clear legal
foundation for its claim. The petitioner, having purchased the
property with express recitals and obligations in the deed, cannot
now resist the implementation of those obligations. The impugned
Order dated 29 May 2025, therefore, does not call for interference.
The Petition deserves to be dismissed.
22. The petition is therefore dismissed.
23. No order as to costs.
(AMIT BORKAR, J.)
