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Bombay High Court
Mira Shriram Co-Operative Housing ... vs M/S. Kedarnath Consruction Company And ... on 24 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:13989
911-wp-15759-25 Final.doc
MPBalekar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15759 OF 2025
Mira Shriram Co-operative
Housing Society Ltd. ... Petitioner
V/s.
M/s. Kedarnath Construction
Company and Ors. ... Respondents
Mr. Surel S. Shah, Senior Advocate, a/w Prithviraj S.
Gole, for the petitioner.
Mr. Sharad D. for respondent No.1.
Mr. Nimesh Bhatt for respondent No.3.
Ms. Samiksha Malekar a/w Darshan Pillai for
respondent No.4.
Mr. Mandar Joshi a/w Milind Nar and Biswajeet
Mukherjee i/by D. Joshi for respondent No.5.
Mr. Hamid D. Mulla, AGP, for the State.
Mr. R.R. Mishra for respondent No.7.
Mr. Vilas B. Tapkir a/w Jyotiram Yadav for respondent
No.8.
CORAM : AMIT BORKAR, J.
DATED : MARCH 24, 2026
P.C.:
1. Rule. Rule made returnable forthwith.
2. The petitioner has approached this Court being dissatisfied
with the judgment and order dated 15 October 2025 passed by the
Competent Authority. By the said order, the application filed by the
petitioner under Section 11 of the Maharashtra Ownership Flats
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Act came to be rejected.
3. According to the petitioner, once all legal requirements were
fulfilled and the promoter failed to execute the conveyance, the
Competent Authority ought to have stepped in and granted
deemed conveyance. Instead, the authority has refused relief on a
ground which, according to the petitioner, has no proper
connection with their legal right. This challenge therefore requires
careful examination of both facts and the reasoning given by the
authority.
4. The background facts show how the dispute has developed.
The petitioner is a co-operative society formed by flat purchasers.
It consists of 24 residential flats and 33 shops. These members
have purchased their respective units long back. It is their
consistent case that though they paid consideration and
agreements were executed, the promoter did not complete his
legal duty of executing conveyance in favour of the society.
Because of this failure, the petitioner had no option but to invoke
Section 11 of the Act and approach the Competent Authority.
Along with the application, all necessary documents were placed
on record. However, the Competent Authority rejected the
application. The main reason given was that the building was
constructed on land which was later shown as reserved under the
planning law. According to the authority, such reservation created
a legal difficulty in granting conveyance.
5. When the record is carefully examined, the reasoning of the
Competent Authority does not appear to stand on firm ground.
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The authority itself has recorded a clear finding in paragraph
16(e). It notes that the building of the petitioner was approved in
the year 1992. It further records that part Occupation Certificate
was granted in the year 1995. This means that the construction
was not only sanctioned but was also substantially completed in
accordance with law. The important aspect is the timing of the
reservation. The record shows that the reservation under the
planning law came into existence only in the year 1997. By that
time, the building had already been constructed as per sanctioned
plan. Therefore, the construction cannot be said to be illegal or
contrary to reservation, because such reservation was not even in
existence at the relevant time. This aspect goes to the root of the
matter. A subsequent reservation cannot take away rights which
had already come into existence on the basis of lawful
construction.
6. It is also an admitted position that agreements as required
under Section 4 of the Act were executed in favour of the
individual purchasers. This fact has not been disputed by any of
the respondents. These agreements establish the relationship
between the promoter and the purchasers. They also show that the
purchasers have acquired enforceable rights in respect of their flats
and the land appurtenant thereto. Once such agreements are in
place and possession is given, the promoter carries a statutory
obligation to convey title to the society. This obligation is a duty
created by law. Therefore, once this position is accepted, the
failure of the promoter to execute conveyance gives a clear cause
for invoking Section 11.
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7. During the hearing of the present petition, the developer,
who is respondent No.1, along with respondent Nos.3 to 5, has
clearly stated that they have no objection if deemed conveyance is
granted in favour of the petitioner society. This statement is made
on instructions and is recorded. This shows that even the promoter
side is not disputing the entitlement of the petitioner.
8. The petitioner has also placed on record an affidavit
regarding service upon the original owner, who is respondent No.2
through respondent Nos.2(a) and 2(b). The affidavit states that
they were served by hand delivery. This fact has been accepted.
Despite such service, the said respondents have chosen not to
appear before this Court.
9. The only opposition which survives is from respondent Nos.7
and 8. Their contention is that if deemed conveyance is granted in
favour of the petitioner, it will affect their rights. This objection has
to be tested on facts. The map produced on record becomes
important in this context. The map clearly shows the physical
location of the petitioner's building and the surrounding
structures. It indicates that respondent No.8 society is situated at a
distance of more than 150 meters from the petitioner. It also shows
that there are Development Plan roads and other buildings in
between. Further, it is seen that in respect of several such
buildings, deemed conveyance has already been granted. This
factual position weakens the objection raised by respondent No.8.
10. As regards respondent No.7, it is also a separate society
located at a distance. The map shows that the petitioner's building,
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along with an adjoining structure, forms a separate block. This
block is clearly separated by roads on three sides. Between the
petitioner's property and the properties of respondent Nos.7 and 8,
there exist roads as well as other constructed buildings. Therefore,
there is no direct overlap of land or rights. The apprehension
expressed by these respondents appears to be more theoretical
than real. There is nothing on record to show how their legal
rights would be affected if conveyance is granted only in respect of
the land under the petitioner's building and its appurtenant area.
11. In view of the map and the surrounding circumstances, the
objections raised by respondent Nos.7 and 8 do not carry sufficient
weight. Their claim of prejudice is not supported by any concrete
material. Mere apprehension without factual basis cannot be
accepted to defeat a statutory right of the petitioner. Therefore,
these objections deserve to be rejected. The map is annexed as part
of copy of this order at Exhibit 'X'.
12. Taking an overall view of the matter, the position becomes
clear. The construction of the building was lawful at the time it
was carried out. The subsequent reservation cannot undo that
position. The agreements under the law are admitted. The
promoter and other respondents have no objection. The owner has
chosen not to appear despite service. The objections raised by
other societies are without substance. In such a situation, denial of
deemed conveyance would result in continuing injustice to the
members of the petitioner society. Therefore, this Court is of the
considered opinion that the writ petition deserves to be allowed
and appropriate directions for grant of deemed conveyance are
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required to be issued.
13. Hence, rule is made absolute in terms of prayer clause (b).
14. The writ petition stands disposed of as allowed.
(AMIT BORKAR, J.)
