[Cites 10, Cited by 0]

Bombay High Court

Reena Sanjay Minz And Ors vs State Of Maharashtra And Ors on 30 March, 2026

Author: Bharati Dangre

Bench: Bharati Dangre

2026:BHC-AS:15198-DB                                                 WP 9931 OF 2023, 12628 OF 22, J..DOC




                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                             WRIT PETITION NO. 9931 OF 2023

                      1.   Reena Sanjay Minz,                                   ]
                           Aged - 59 years;                                     ]
                                                                                ]
                      2.   Siraj M. Yusuf,                                      ]
                           Aged - 57 years;                                     ]
                                                                                ]
                      3.   Jigna Jay Kantawala,                                 ]
                                                                                      ...Petitioners
                           Aged - 44 years.                                     ]
                                                                                ]
                           All presently R/at.                                  ]
                           327, Samuel Street,                                  ]
                           Jamnabai Building, Vadgadi,                          ]
                           Masjid Bunder (West),                                ]
                           Mumbai 400 003                                       ]

                             Versus

                      1.   State of Maharashtra                                 ]
                           Through the office of the                            ]
                           Government Pleader,                                  ]
                           High Court, Appellate Side, Mumbai;                  ]
                                                                                ]
                      2.   Collector of Stamps, Mumbai,                         ]
                           having office at Old Customs House,                  ]
                           34 Floor, Fort, Mumbai;                              ]
                                                                                ]
                      3.   The District Deputy Registrar                        ]
                           Co - operative Societies                             ]
                           Mumbai City -1, having office                        ]
                           at 6th floor, Malhotra House,                        ]
                           Opp. GPO, Mumbai 400 001;                            ]
         Digitally
         signed by
         RAJESHRI
                                                                                ]
RAJESHRI PRAKASH
PRAKASH AHER
AHER     Date:
                      4.   Sambhav Tirth CSH Ltd.,                              ]
         2026.03.30
         19:43:39
         +0530
                           Through its Chairman/Secretary,                      ]
                           Having office at 2A, Bhulabhai                       ]
                           Desai Road, Mumbai 400 026;                          ]




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5.   Vishwamangal Housing Company                         ]
     Pvt. Ltd., Having its registered office              ]
     at 4-D, Court Chamber, 35,                           ]
     New Marine Lines, Mumbai 400 020                     ]
     C/o. Mr. Shantilal N. Shah,                          ]
     Residing at A-Wing, Flat No. A-4 ,                   ]
     Ground Floor Padma Nagar,                            ]
                                                            ...Respondents
     Andheri - Kurla, Chakala,                            ]
     New Western Express Highway,                         ]
     Metro Station, Union Bank of India                   ]
     Lane, Andheri (East),                                ]
     Mumbai - 400 099.                                    ]

                                WITH
                   WRIT PETITION NO. 12628 OF 2022

1.   Reena Sanjay Minz,                                   ]
     Aged - 59 years;                                     ]
                                                          ]
2.   Siraj M. Yusuf,                                      ]
     Aged - 57 years;                                     ]
                                                          ]
3.   Jigna Jay Kantawala,                                 ]
                                                                ...Petitioners
     Aged - 44 years.                                     ]
                                                          ]
     All presently R/at.                                  ]
     327, Samuel Street,                                  ]
     Jamnabai Building, Vadgadi,                          ]
     Masjid Bunder (West),                                ]
     Mumbai 400 003.                                      ]

                 Versus
1.   State of Maharashtra                                 ]
     Through the office of the                            ]
     Government Pleader,                                  ]
     High Court, Appellate Side, Mumbai;                  ]
                                                          ]
2.   The District Deputy Registrar                        ]
     Co - operative Societies                             ]
     Mumbai City -1, having office                        ]
     at 6th floor, Malhotra House,                        ]
     Opp. GPO, Mumbai 400 001;                            ]



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3.   Sambhav Tirth CSH Ltd.,                                 ]
     Through its Chairman/Secretary,                         ]
     Having office at 2A, Bhulabhai                          ]
     Desai Road, Mumbai 400 026;                             ]
                                                             ]
4.   Vishwamangal Housing Company                            ]
     Pvt. Ltd., Having its registered office                 ]
     at 4-D, Court Chamber, 35,                              ]
     New Marine Lines, Mumbai 400 020                        ]
                                                             ]
     C/o. Mr. Shantilal N. Shah,
                                                             ]
     Residing at A-Wing, Flat No. A-4 ,
                                                             ]
     Ground Floor Padma Nagar,
                                                             ]
     Andheri - Kurla, Chakala,
                                                             ]
     New Western Express Highway,
                                                             ] ...Respondents
     Metro Station, Union Bank of India
                                                             ]
     Lane, Andheri (East),
                                                             ]
     Mumbai - 400 099.
                                                             ]
5.   Bharat Petroleum Corporation Ltd.                       ]
     Having its registered office at                         ]
     Bharat Bhavan, 4 & 6,                                   ]
     Currimbhoy Road, Ballard Estate,                        ]
     Mumbai - 400 038.                                       ]


Mr. Bhavesh Parmar a/w. Ms. Reshma Nair, Mr. Rajesh Sahani
     i/b. Mr. Devmani Shukla, Advocate for the Petitioners.
Mr. O.A. Chandurkar, Addl. G.P. a/w. Ms. Karan S. Thorat, 'B'
     Panel for State-Respondent Nos. 1 to 3.
Mr. Roopadaksha Basu and Ms. Heenal Wadhwa i/b. M/s. The
     Law Point, Advocate for Respondent No. 5 in ----
Mr. Vaibhav Sugdare a/w. Mr. Jash Shah i/b. M/s. Induslaw,
     Advocate for Respondent No.4 in W.P. 9931 of 2023 and
     for Respondent No. 3 in W.P. 12628 of 2022.


                             CORAM :       BHARATI DANGRE &
                                           MANJUSHA DESHPANDE, JJ.
                  RESERVED ON :            11th MARCH, 2026.
                PRONOUNCED ON :            30th MARCH, 2026.

JUDGMENT ( Per : Manjusha Deshpande, J.) :

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1. Rule. Rule made returnable forthwith. The matter is

taken up for final disposal with the consent of the parties.

2. Both these Writ Petitions are filed by the same set of

Petitioners against the Respondents who are common in both

the Writ Petitioners. The challenge raised in Writ Petition

No.9931 of 2023, is in continuation of the action taken

pursuant to the orders passed, by the Authorities which is the

subject matter of challenge in Writ Petition No.12628 of 2022.

Hence, both these Writ Petitions are being decided by way of

this common judgment.

3. The Petitioners have challenged the order dated

27.04.2022 issued by the District Deputy Registrar, Co-operative

Societies, Mumbai City 1, in favour of the 'Sambhav Tirth Co

Operating Housing Society' (hereinafter referred to as, 'Sambhav

Tirth CHSL', for short), who is a party Respondent in both the

Writ Petitions. The facts of Writ Petition No. 12682 of 2022', are

that one Mr. Nitin Rangwala entered into an Agreement of Sale

with Vishwamangal Housing Company Private Limited-

Respondent No.4 in that Writ Petition. Late Mr. Nitin Rangwala

executed an Indenture of Lease in favour of Respondent No.4 on

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29th September, 1972. On 6th December, 1977, the Respondent

No.3 Society was registered, comprising of various purchasers of

the residential and commercial premises in the building

constructed by Respondent No.4. The Respondent No.3 society

comprises of 43 members. The Respondent No.3 Society filed Suit

No.398 of 1986, before this Court seeking directions to the

Defendants to convey and transfer the suit property free from all

liabilities and encumbrances and to make out a clear marketable

title; discharge all debts and claims for effectively conveying the

same in favour of the Plaintiffs and for declaration that the

provisions of the Maharashtra Ownership Flats (Regulation of

the Promotion of Construction, Sale, Management and Transfer)

Act, 1963 (hereinafter referred to as 'MOFA', for short) apply to

the flats in the said 'Sambhav Tirth CHSL' situated at plot

bearing Survey No. 1/787 situated at Bhulabhai Desai Road,

Bombay, with the modification mentioned in Section 17 of the

said Act, with other incidental reliefs. However, the said suit

came to be dismissed for want of prosecution by this Court vide

order dated 5th September, 2018.

4. On 15th January, 2021, an application was preferred by the

Respondent No.3 Society seeking deemed conveyance for the plot

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of land bearing cadastral survey no.1/787 admeasuring 1392.99

square meters and also for the plot of land bearing cadastral

survey no.1A/787 admeasuring 610.37 square meters. One more

application seeking deemed conveyance of land bearing survey

no. 889 admeasuring 745.83 square meters was also made on the

same day. This application dated 15.01.2021 was rejected by the

District Deputy Registrar Co-operative Societies vide order dated

30th June, 2021.

5. The Respondent No.3 again filed an Application No. 50 of

2021 before Respondent No.2, seeking declaration of unilateral

Deemed Conveyance Deed. The petitioners have filed their reply

to the application opposing grant of any such relief, as prayed by

the Respondent No.3 society in their application No. 50 of 2021.

The impugned order allowing the Application No.50 of 2021 was

passed by Respondent No.2 on 27th April, 2022. Hence, being

aggrieved by the grant of declaration of 'Deemed Conveyance'

(unilateral), the Petitioners have approached this Court. The

Petitioners apprehended that Respondent No.3 Society would get

the 'Deemed Conveyance' executed pursuant to the order dated

27th April, 2022 which was received by the Petitioners on 28 th

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April, 2022. Hence, they have rushed to this Court immediately

by filing the present petition.

Pursuant to the orders passed by the Respondent No.2 on

27th April, 2022, granting the application for issuance of 'Deemed

Conveyance' accompanied by a certificate of entitlement for

issuance of 'Unilateral Deemed Conveyance', the same was

executed, duly stamped and registered by the Respondent No.2

on 13th March, 2023, which is the subject matter of challenge in

Writ Petition No. 9931 of 2023. Hence, in view of the

aforementioned facts, the Petitioners have approached this Court

challenging the entitlement for issuance of the unilateral Deed of

Conveyance dated 27th April, 2022, and the impugned 'Deed of

Conveyance' dated 13th March, 2023, executed, stamped and

registered by the Respondent Authorities.

6. The learned advocate for the Petitioners Mr. Bhavesh

Parmar submits that, the draft Deed of Conveyance clearly

indicates that the Respondent No.3 Society intended to acquire

ownership rights, title or interest in the plots belonging to the

Petitioners even though the Respondent No.3 Society was fully

aware that the Developer i.e. the Respondent No.4 Housing

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Company never had the right to title or interest in the plot of

land upon which the building is constructed. The right of the

Promoter is limited only to the extent of leasehold rights in the

plot of land. The individual agreement executed by the

Respondent No.4 Housing Company with the purchasers of the

flats i.e. the members of the Respondent No.3 Society, specifically

mentions about the Indenture lease dated 29th September, 1972.

7. Relying on one of the agreements executed by the

Respondent No.4, it is submitted that the agreement itself in

unequivocal terms stipulates that the Lessee as Promoters

obtained a lease of all these pieces and parcels of land, under an

Indenture of lease on 29th September, 1972 executed between

Shri. Nitin Madhavji Hariram Rangwala as the Lessor and the

Vishwamangal Housing Co. Pvt. Ltd. as the Lessee, for the period

of 98 years commencing from 29th June, 1972. Hence, a

Conveyance Deed transferring the leasehold rights in favour of

the Society is issued.

8. It is submitted that the statutory rights, as provided under

Chapter 5 relating to leases of immovable property in Section

105 to 117 of the Transfer of Property Act, cannot be

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circumvented and ignored by the concerned Authority, while

exercising powers under Section 5(A) and 11 (4) of the MOFA

Act. The provisions of MOFA including Section 5(A) and 11(4)

empower the Authorities concerned to convey only the leasehold

rights and not the ownership rights through a 'Deemed

Conveyance Deed'; in favour of the registered society. An

objection is also raised by the learned Advocate on the ground

that similar reliefs were claimed earlier by the Respondent No.3

in Suit No. 398 of 1986, in this Court, which has been rejected

vide order dated 5th September, 2018. Hence, the claim for the

relief that was once rejected before this Court cannot be agitated

again by invoking provisions of the MOFA Act.

9. It is further, submitted that the draft Deed of Conveyance

submitted by the 'Sambhav Tirth CHSL', indicated that, the

society intended to acquire ownership rights, title and interest in

the plot of land belonging to the Petitioners, even though the

society was fully aware that, the 'Vishwamangal Housing

Company' never had and could not have any right, title or

interest in the plot of land upon which the building is

constructed. The members of the society can have only the

leasehold rights in respect of the plot of land. He has drawn our

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attention to the lease deed dated 29th September, 1997, which

clearly restricts the right of the Housing Company to the extent

of leasehold rights acquired vide lease deed dated 29th

September, 1972.

10. The learned advocate for the Petitioners raises further

objection on the ground that, though the Writ Petition No. 12628

of 2022 is pending, before this Court, challenging the order dated

27th April, 2022, granting a certificate of entitlement for

execution of the unilateral 'Deed of Conveyance', yet the

Authorities have proceeded and duly stamped and registered the

unilateral Deed of Conveyance.

11. The Petitioners also object to the Deed of Conveyance dated

13th March, 2023, on the ground that even though the Section

11(5) of the MOFA mandates the Registering Authority to issue

summons to the parties to show cause, why unilateral Deed of

Conveyance should not be registered, no such summons has ever

been issued to the Petitioners, thereby violating the basic

principle of natural justice, by denying them opportunity of being

heard. Even though they have addressed letters to the

Authorities on 7th May, 2022 and 20th August, 2022, calling upon

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the Authorities to issue notice to the Petitioners, before

embarking upon execution, stamping and registration of the

'Deed of Conveyance' based on order dated 27 th April, 2022, yet

the Authorities have failed to issue any such notice. Thus, the

registration of 'Deemed Conveyance' having been done without

following the mandatory procedure, provided under Section

11(5) of the MOFA Act, becomes vulnerable, and requires

interference of this Hon'ble Court.

12. It is also submitted that the text of the Deed of 'Deemed

Conveyance' dated 13th March, 2023, entails the transfer of all

rights, title and interest of the Petitioners in the land, when

admittedly the order dated 27th April, 2022, gives only

assignment of legal rights arising out of the deed of lease dated

29th September, 1972. The interim order which came to be

passed by the Respondent Authorities on 13 th February, 2023,

was never communicated to the Petitioners even though the

order itself calls upon the interested persons to record their

objections on or before 20th February, 2023. The Petitioners are

not sure whether a fresh and final order has been passed after

issuance of interim order dated 13th February, 2023.

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13. Both the Petitions are opposed by the 'Sambhav Tirth

CHSL' represented by Mr. Vaibhav Sugdare. The learned

advocate for the Society would submit that, the 'Sambhav Tirth

CHSL', is duly registered under the Maharashtra Co-operative

Societies Act. The construction of the building has been

completed by the Vishwamangal Housing Company, which houses

42 flats and one commercial shop. The building is constructed on

the land at Malabar and Cumballa Hill Division in cadastral

survey no. 889 admeasuring 745.83 square meters and cadastral

survey no. 1/787 admeasuring 1392.99 sq. meters. So far as the

land bearing cadastral survey no. 1/787 to the extent of 1392.99

square meters is concerned, it belonged to late Premabai

Madhavji Hiraram Rangwala. Whereas, the land in cadastral

survey No. 889 to the extent of 745.83 square meters, which is

the second set of land, is Collector's land, which was granted on

lease to Premabai Rangwala by the Collector on 20th September,

1963.

An agreement came to be entered between the

'Vishwamangal Housing Company' and Mr. Nitin Rangwala,

whereby the land comprising survey Nos. 1/787 and 889 came to

be transferred to the Promoter vide agreement dated 29th

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September, 1972, for a period of 98 years commencing from 29 th

September, 1972. The Promoter has constructed the building on

the said lands with common areas, and thereafter entered into

sale agreements with the flat purchasers of each unit under Rule

4 of MOFA Rules, 1964. The Promoter also formed a Co-operative

Housing Society of the flat owners of the building under the name

and style 'Sambhav Tirth Co-operative Housing Society', which

came to be registered on 6th December, 1997. The flat owners are

the members of the Society and have been issued shares of the

society.

The Promoter was required to assign its leasehold rights to

the society within four months of registration of the society, as

provided under Section 11 of the MOFA Act read with Rule 9 of

the Rules made thereunder. However, the developer failed to

comply with this statutory obligation by conveying the leasehold

rights in favour of the society therefore, the society was

constrained to file proceedings for issuance of a unilateral Deed

of 'Deemed Conveyance', as provided under the MOFA Act. The

Competent Authority after hearing the parties on the application

of the Promoter, passed appropriate orders on 27 th April, 2022,

pursuant to which the actual unilateral Deed of Conveyance is

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registered and executed. Therefore, there is no substance in the

objection raised by the Petitioners. The Competent Authority has

passed appropriate orders of entitlement of 'Deemed

Conveyance' (unilateral) only after verifying the authenticity of

documents submitted by the parties and a reasonable

opportunity was given to all parties. The Competent Authority

has passed an order transferring the leasehold rights to the

society, which cannot be faulted with and there is no substance in

the objection raised by the Petitioners. Hence, the Writ Petition

deserves to be dismissed.

14. Mr. Chandurkar, the learned Additional G.P. and Ms. Karan

have also supported the orders passed by the District Deputy

Registrar Co-operative Societies, Mumbai as well as the deemed

Deed of Conveyance (unilateral), which is executed and

registered by the Collector of Stamps, Mumbai, submitting that

the order dated 27th April, 2022 as well as the unilateral Deed of

Conveyance are appropriately issued in exercise of the Section

11 of the MOFA Act and Rule 9 of the MOFA Rules.

15. Heard the respective counsel and perused the papers in

both the Writ Petitions. The Petitioners are taking exception to

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the order dated 27th April, 2022, granting permission and

eligibility for issuance of unilateral Deed of Conveyance and the

consequent execution and registration of the Deed of Conveyance

(unilateral) dated 13th March, 2023. The Petitioners are taking

exception to both the orders primarily on the ground that,

although, Suit No. 398 of 1986 was filed by the Petitioners for

similar reliefs has been dismissed by this Court vide its order

dated 5th September, 2018, hence, once having been refused the

relief by this Court, the Petitioners are prohibited from agitating

the same grievance, by approaching a different forum.

16. Upon perusal of the copy of the suit as well as the orders

passed by this Court, we find that the suit has been dismissed

observing that the Plaintiff does not seem to be interested in

prosecuting the suit, hence, the suit is dismissed. The suit was

filed in the year 1986, and dismissed on 5 th September, 2018. The

suit was filed seeking a declaration that (i) the acts of the

'Vishwamangal Housing Company' shall not cause prejudice to

the rights of the occupiers of the flats in the buildings

constructed, who are members of the 'Sambhav Tirth Co-

operative Housing Society'; (ii) the sum of Rs. 23,54,000/-

recovered and received by the Defendant 'Vishwamangal

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Housing Company', from various flat purchasers of the Plaintiffs

society for converting the suit property from leasehold to

freehold, should be conveyed in their favour; (iii) to appoint a

Court Receiver for Flat No. 13A and B in possession of State Bank

of India, part of the suit property.

17. Upon going through the plaint and the prayers made

therein, we do not find that the relief of 'unilateral Deed of

Conveyance' is claimed in any of the prayers. Therefore, there is

no substance in the objection in so far as it relates to agitating

the same grievance after dismissal of Suit No. 398 of 2023. Even

otherwise the suit was never dismissed on the merits of the

matter, hence, we do not find any substance in the objection

regarding the maintainability of the application under Section 11

of the MOFA Act.

18. The other objection common to both the Writ Petitions is

that, although the land was transferred in favour of

'Vishwamangal Housing Company', for the development and

construction of the building namely, 'Sambhav Tirth Co-

operative Housing Society' it was limited only to the extent of

leasehold rights as per the Indenture of lease dated 29 th

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September, 1972, and no deemed conveyance could have been

executed, granting 'ownership' rights. We have perused the draft

deed of conveyance placed on record, which clearly confers only

the leasehold rights under the lease deed dated 29 th September,

1972 in favour of the Society, and nothing beyond that.

So far as the delay in approaching the Authority for

unilateral issuance of the deed of conveyance is concerned, we do

not find that there is any period of limitation provided for

approaching the Competent Authority for such relief. It is only

upon failure of the Developer to comply with the statutory

obligation of conveying the leasehold rights, within the period if

any specified in the Agreement executed by the Promoter or

from four months of formation of the society.

Under Section 4(1) of the MOFA Act, the Promoter is

required to execute a registered agreement for sale in favour of

flat purchasers in the form prescribed under the MOFA Rules. It

is also the Promoter's obligation to take steps to form a Co-

operative Society. Accordingly, the co-operative society of the

flat owners has been formed. So far as taking steps to complete

the title and convey it to the society formed by the flat

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purchasers has been avoided by the Respondent 'Vishwamangal

Housing Company' for years together which is a continuing cause

of action, for which there is no outer limit. As such the objection

as to delay is not tenable.

19. So far as the locus of the Petitioners in both the Writ

Petitions to raise objection to the orders therein is concerned, the

Petitioners are the legal heirs of Mr. Nitin Rangwala, who entered

into an agreement of lease with the 'Vishwamangal Housing

Company'. By way of a lease, the Promoter has been granted a

lease for a period of 98 years, commencing from 29.06.1972.

This agreement has been entered into 23rd August, 1976,

granting permission to the Promoters, to construct a multi

storied building consisting of a basement, ground and 14 upper

floors., according to the specifications and sanctioned plans by

the Mumbai Municipal Corporation, and further granting

permission to the Promoters for sale of flats alongwith garages

and parking places on ownership basis, with a view that

eventually the holders of all the flats in such building should form

themselves into a co-operative housing society, registered under

the Maharashtra Co-operative Societies Act, with a condition

that, the Promoter shall execute assignment of the lease obtained

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by him in favour of such society. However, in view of the failure

of the Promoter to comply with the condition in the agreement,

the society formed as per the agreement, was constrained to

approach the Competent Authority under Section 11 of the

MOFA. This application is filed as per the Scheme of the Act, no

relief is sought against the Petitioners before the Competent

Authority or the Registering Authority. When the application was

filed by the Applicant society, the said application was filed in the

format provided under form 7, Section 11 (3) and Rule 12 of the

MOFA Act on 15th January, 2021. The society was called upon to

provide necessary documents, after completion of verification of

documents, notice of hearing was issued upon which the

Petitioners who were Respondent Nos. 2 to 4 before the District

Deputy Registrar Co-operative societies, Mumbai, were

represented through their Advocate.

20. The Petitioners have raised objections regarding breach of

condition of lease by alleging that the flat holders/owners have

been given possession of the tenements, without obtaining an

occupancy certificate from the Mumbai Municipal Corporation,

as a result of which the agreement dated 29 th September, 1972 is

liable to be cancelled. An objection was also raised regarding

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violation of other terms of the lease, which would entail in

cancellation of the leasehold rights.

21. After considering the objection of the Petitioners, an order

came to be passed by the District Deputy Registrar, Co-operative

Societies, Mumbai, granting the application of the Society

holding them entitled for 'unilateral Deed of Conveyance'. While

granting the entitlement certificate vide order dated 27 th April,

2022, the Competent Authority has observed that, though

objections have been raised by the non applicants, on the ground

of breach of conditions of lease by the applicants, however they

have not produced on record or document of cancellation of such

lease or any order of stay of the agreement of lease. In view of

that, considering that the agreement was still valid and in

existence, the objection raised by the Petitioners is rightly not

taken into consideration. Hence, we do not find any substance in

the objection raised by the Petitioners to the order dated 27 th

April, 2022, and the certificate of entitlement issued pursuant

thereto by the Competent Authority in Application No. 50 of

2021, filed by the Society. The order has been passed by the

Competent Authority by giving an opportunity being heard to all

the parties and after taking into consideration the objection, the

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competent Authority has held that, as per the agreement the

Vishwamangal Housing Company Limited, had agreed to transfer

their rights in favour of the Society, which is not acted upon.

Therefore, in view of Section 11 (3) of the MOFA, an order has

been passed issuing the certificate of entitlement, declaring that

the society is entitled to unilateral 'Deemed Conveyance Deed'.

Upon perusal of the order dated 27th April, 2022, and the related

documents, we do not find any irregularity committed by the

Competent Authority in issuing the impugned order.

22. The learned Advocate for the Petitioners while making his

submissions, has objected to the exercise of power by the

Authorities under Section 11(4) of the MOFA Act, on the ground

that statutory legal rights provided under Chapter V of the

Transfer of Property Act in Sections 105 to 117, cannot be

circumvented and ignored. When we peruse the relevant

provisions in both the enactments, we find that, Sections 105 to

117 of the Transfer of Property Act governs leases, conditions of

lease, rights of parties and determination of lease etc. On the

other hand, Section 11(4) confers powers on the competent

Authority under the MOFA, to verify the authenticity of

documents and after hearing the parties issue a certificate of

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entitlement of the society for issuance of unilateral 'Deed of

Conveyance', conveying the right, title and interest of the

Promoter in land and building to the society. These two Acts and

the provisions thereunder operate in two distinct situations,

which do not affect or overlap with the rights of the Applicants,

seeking relief under either of the enactments. Section 11(4) of

the MOFA Act does not transfer the ownership or title. It only

declares the applicant to be entitled to certificate of 'Deemed

Conveyance', which is limited to the extent of the right of the

Promoter in the land and building. It does not effectively transfer

the title of land, in the applicant. If at all any party is aggrieved

by such order, he has the remedy of filing civil suit. The Hon'ble

Supreme Court in a recent decision in case of Arunkumar H.

Shah HUF Vs. Avon Arcade Premises Co-Operative Society

Limited and Ors.1 has declared the scope and ambit of Section

11(3), (4) and (5) of the MOFA, which reads thus:

"37. Our conclusions on the interpretation of sub-sections (4) and (5) of Section 11 of the MOFA are as under:

i. It is no doubt true that quasi-judicial powers have been conferred on the competent authority while dealing with applications under Section 11(3) of the MOFA. However, proceedings before the competent authority under Section 11(3) are of a summary nature, as can be seen from the

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MOFA Rules. Therefore, the competent authority, while passing the final order, must record reasons;

ii. The competent authority, while following the summary procedure, cannot conclusively and finally decide the question of title. Therefore,notwithstanding the order under sub- section (4) of Section 11, the aggrieved parties can always maintain a civil suit for establishing their rights;

iii. The provisions of Section 11 are for the benefit of the flat purchasers. In writ jurisdiction, the Court should not interfere with the order granting deemed conveyance unless the same is manifestly illegal. The writ court should generally be slow in interfering with such orders. The reason is that, notwithstanding the order under Section 11(4), the remedy of aggrieved parties to file a civil suit remains open; and

iv. The registering officer has no power to sit in appeal over the order of the competent authority while exercising the power under Section 11(5). He can refuse registration only on the grounds indicated in paragraph 23 above and not beyond. Thus, the scope of the powers conferred on the registering officer is limited."

In view of the aforementioned interpretations, we do not

find any scope for entertaining the objection of the Petitioners.

23. Based on this order dated 27th April, 2022, registering

authority has issued a show cause notice to the Promoter as to

why such unilateral 'Deed of Conveyance' instrument should not

be registered as, 'Deemed Conveyance'. Only after giving the

Promoter a reasonable opportunity of being heard and being

satisfied that it is a fit case for issuance of a unilateral Deed of

Conveyance, the instrument is registered as, 'Deemed

Conveyance'. This registration granted by the Registering

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WP 9931 OF 2023, 12628 OF 22, J..DOC

Authority is dated 13th March, 2023, which is the subject matter

of challenge in Writ Petition No. 9931 of 2023.

24. As regards the challenge to this order, an exception has

been taken to the registration of Deed of Conveyance by

repeating some of the grounds in Writ Petition No. 12628 of

2022. So far as the objection about the registration of the

unilateral Deed of Conveyance during the pendency of Writ

Petition No. 12628 of 2022, is concerned, since there was no stay

operating against the order dated 27th April, 2022, there was no

bar for the registering Authorities to act in furtherence to the

certificate of entitlement issued by the Competent Authority.

Thus, the objection raised on that ground is not maintainable.

Further objection is raised by the Petitioners contending

that the Respondent Authorities have played mischief by getting

the 'Deemed Conveyance' (unilateral) executed, by duly

stamping and registering it, without issuing any show cause

notice to them, is in violation of Section 11(5) of the MOFA. This

has been done by ignoring the representations of the Petitioners

requesting the Authorities to give them hearing before

registering the unilateral deed of conveyance.

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Section 11(5) of the MOFA, reads thus:

"11(5) On submission by such society or as the case may be, the company or the association of apartment owners, to the Sub- Registrar or the concerned appropriate Registration Officer appointed under the Registration Act, 1908, the certificate issued by the Competent Authority along with the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate Registration Officer shall, notwithstanding anything contained in the Registration Act, 1908, issue summons to the promoter to show cause why such unilateral instrument should not be registered as 'deemed conveyance' and after giving the promoter and the applicants a reasonable opportunity of being heard, may, on being satisfied that it was a fit case for unilateral conveyance, register that instrument as 'deemed conveyance"

Upon careful reading of the Section, we find that, a duty is

cast upon the Sub Registrar or the appropriate Registration

Officer, to issue summons to the Promoter to show cause as to

why such unilateral instrument of conveyance should not be

registered as, 'Deemed Conveyance' after giving the Promoter

and the applicant a reasonable opportunity of being heard. On

being satisfied that, it is a fit case for unilateral conveyance,

does not contemplate a notice to the land owner before

registering the instrument. All that it contemplates is that a

notice is required to be issued to the Promoters, since it is the

duty cast upon the Promoter to execute the conveyance deed,

which is agreed by him as per the terms of agreement, within

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WP 9931 OF 2023, 12628 OF 22, J..DOC

the prescribed period. It is upon failure of the Promoter, the

Competent Authority is called upon to exercise its power for

issuance of unilateral 'Deed of Conveyance' in favour of the

society. The Competent Authority upon receiving such

application from society has to inquire whether such application

is fit for being granted after verifying the documents and giving

opportunity to the Promoter. Thus, at the stage of verification by

the competent Authority, opportunity is given to all the parties

concerned, including the Petitioners. A fitness certificate is

issued by the Competent Authority, which is acted upon by the

Registering Authority, as contemplated under Section 11 (5). At

this stage also, it is the Petitioners who is called upon to show

cause why such deemed conveyance should not be registered.

Thus, the scheme of the Act does not contemplate a notice to the

owners, when they have already granted leasehold rights to the

Promoter.

In this context we may refer to the judgment of the Hon'ble

the Supreme Court in case of Arunkumar H. Shah (Supra), which

reads thus:

"22. Now, we deal with the scope of powers of the registration officer under the Registration Act, 1908 (for short, 'the 1908 Act') under sub-section (5) of Section 11. As provided in sub-section (4)

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WP 9931 OF 2023, 12628 OF 22, J..DOC

of Section 11, a certificate regarding the entitlement of the applicant to deemed conveyance has to be issued by the competent authority to the appropriate registration officer under the 1908 Act. After receiving the certificate, the registration officer is required to issue a summons to the promoter to show cause why such a unilateral instrument should not be registered as a deemed conveyance. After giving an opportunity of being heard to the promoter and after being satisfied that it was a fit case for registration of a unilateral conveyance, the registration officer can register the certificate as deemed conveyance. We may make it clear that the power conferred on the registration officer does not enable him to reopen or set aside the findings recorded by the competent authority while passing an order of grant of certificate. The registration officer is neither an appellate authority nor a revisional authority."

[Emphasis supplied]

25. On this background, even the objection to the interim

order dated 13th February, 2023, passed by the Registering

Authority would not survive since in the interim order itself it is

stated that if no objections are received up to 20 th February,

2023, the order dated 13th February, 2023, shall be deemed to be

a final order. As no objections were received against the interim

order, the interim order culminated into a final order dated 13 th

March, 2023.

So far as the apprehension of the Petitioners that the

contents and text in the Deemed Conveyance dated 13 th

February, 2023, transfers all rights, title and interest of the

Petitioners to the Respondent Society, amounts to transfer of

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their title, we do not find any substance in this apprehension

expressed by the Petitioners for the reason that, the order itself

is very much clear, which stipulates that the Competent

Authority in exercise of the power delegated to him under

section 5(A) of the MOFA, "now has in himself good right, full

power and absolute authority to convey, transfer, release and

assure the leasehold rights under the lease deed dated 29 th

September, 1972 of the said property hereby granted, conveyed,

transferred or assured or intended so to be unto and to the use of

society in the manner aforesaid and that the society will continue

to occupy and possess the said property for its members own use

and benefit." Therefore, there is no doubt about the fact that only

the leasehold rights have been transferred and there is no

passing over of title through this 'Deed of Conveyance'.

In this regard, we may refer to the observations made by

this Court in a reported decision in case of Haresh Vijaysinh

Bhatia and Ors. Vs. District Deputy Registrar and Ors.2

"62. Thus, a statutory right is created in favour of a society or association of flat purchasers to have in its favour conveyance and transfer of every right which the promoter possessed in respect of the land on which building is constructed. If promoter is the owner of land, he must transfer and convey his ownership right in favour of

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the Society. If on the other hand, promoter is a mere lessee, he must transfer his leasehold rights in the building in favour of the Society. Promoter cannot provide for demise of only leasehold rights if he is the owner of the land."

This Court has unequivocally observed that the statutory

rights which are created in favour of the society by way of

conveyance and transfer are the rights which the Promoter

possesses in respect of land and he cannot transfer something

which is beyond the rights possessed by him. In the present case,

since the Promoter possess only the leasehold rights, he can

transfer only the leasehold right in favour of the society. Hence,

we do not find any favour with the objection raised by the

Petitioners.

26. Similarly, the rectification Deed executed on 30 th

November, 2023, which added the name of M/s. Jigna Jay

Kantawala has no bearing on the merits of the case. This Deed of