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Bombay High Court
Vishnu Darshan Row Houses Cooperative ... vs The Competent Authority And District ... on 30 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15086
6-wp-11689-2015.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11689 OF 2015
Digitally
signed by
Vishnu Darshan Row Houses
SHABNOOR
SHABNOOR AYUB
AYUB PATHAN
Cooperative Housing Society
PATHAN Date:
2026.03.30
16:14:42
Through Its Secretary Vijay Anikhindi ... Petitioner
+0530
V/s.
The Competent Authority &
District Deputy Registrar of the
Cooperative Societies & Ors. ... Respondents
Ms. Arundhati Walawalkar a/w Ms. Sakshi Agarwal i/b
Mr. Bipin J. Joshi, for the Petitioner.
Ms. Ashwini A. Purav, AGP, for the State - Respondent
No.1.
CORAM : AMIT BORKAR, J.
DATED : MARCH 30, 2026
P.C.:
1. Rule. Rule is made returnable forthwith.
2. By the present Petition, the petitioner has assailed the
judgment and order dated 14 July 2015 passed by the Competent
Authority, whereby the application preferred by the petitioner
under Section 11 of the Maharashtra Ownership Flats Act 1963
seeking grant of unilateral deemed conveyance in respect of the
entire property bearing Survey No. 69, Hissa No. 2/2, situated at
Mauje Belavli, Badlapur (East), Taluka Ambernath, District Thane,
admeasuring 22,500 sq. mtrs., came to be rejected. The challenge
is founded on the ground that the Competent Authority failed to
6-wp-11689-2015.doc
properly appreciate the statutory scheme of Section 11, which is
intended to protect flat purchasers from inaction of the promoter,
and instead adopted an unduly technical approach, thereby
defeating the object of the legislation.
3. The facts giving rise to the present Petition disclose that a
Development Agreement dated 4 November 2004 was executed
between the landowners and Respondent No. 2, thereby conferring
development rights upon the said respondent. Pursuant thereto,
Respondent No. 2 obtained IOD and Commencement Certificate on
8 December 2004 for construction of row houses. It further
emerges that between 2004 and 2009, various purchasers, who are
now members of the Petitioner Society, entered into separate
agreements for sale in accordance with Section 4 of MOFA. These
agreements created enforceable rights in favour of the purchasers
not only in respect of their individual units, but also in the
common property forming part of the project, thereby casting a
corresponding statutory obligation upon the promoter.
4. Despite due service of notice, the respondents have failed to
appear before this Court and contest the Petition.
5. The record further indicates that Occupation Certificates
were issued in phases on 7 April 2006, 11 December 2007, and
finally on 1 April 2009 for the remaining row houses. This clearly
establishes that the project was completed in a phased manner and
stood fully completed by 1 April 2009. The Petitioner Society came
to be registered on 3 January 2014. Thereafter, a legal notice
dated 30 June 2014 was issued calling upon Respondent Nos. 2 to
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18 to execute conveyance in favour of the Society. The issuance of
such notice demonstrates due compliance with the statutory
requirement and reflects that the promoter was afforded an
opportunity to discharge his obligation, which he failed to do.
6. It further appears that on 22 September 2014, the Petitioner
submitted an application for deemed conveyance along with
requisite documents and thereafter furnished hard copies as
required. Notices of hearing were issued by the Competent
Authority from time to time. Despite service of notice, the
respondents failed to appear before the Authority and contest the
proceedings. In such circumstances, the petitioner placed on
record written submissions and an indemnity bond. The matter
was thereafter reserved for orders; however, by order dated 14
July 2015, the Competent Authority rejected the application. The
rejection, in absence of any rebuttal from the respondents,
indicates non-consideration of uncontroverted material placed by
the petitioner.
7. Learned Advocate for the petitioner has invited attention to
the agreements executed under Section 4 of MOFA, including the
agreement dated 15 December 2006, to demonstrate that each
purchaser was granted an independent and identifiable right in
respect of his respective row house. It is further submitted that the
entire project comprises 76 row bungalows constructed on the said
plot admeasuring 22,500 sq. mtrs., as reflected in the sanctioned
plan. This submission is significant, as it establishes that the
project is a single composite development and not a fragmented or
severable undertaking.
6-wp-11689-2015.doc
8. It is further submitted, on the basis of the Architect's
Certificate, that the permissible FSI for the said plot at the relevant
time was 0.85. The total constructed built-up area of the 76 row
houses is stated to be 7,953.84 sq. mtrs., whereas the permissible
built-up area is 9,193.68 sq. mtrs. This material demonstrates that
the development was within permissible limits and that no excess
construction is alleged. The Authority, however, failed to consider
this material in its proper perspective, thereby rendering its
conclusion unsustainable.
9. The Competent Authority rejected the application primarily
on the ground of discrepancy in the area mentioned in the
Architect's Certificate. Such a ground, in the considered view of
this Court, is wholly insufficient to deny substantive relief under
Section 11 of MOFA, particularly when the discrepancy, if any, is
not shown to affect the identity or extent of the property sought to
be conveyed.
10. It is not in dispute that the construction commenced around
2006-2007 and stood completed on 1 April 2009 upon issuance of
the Completion and Occupation Certificate by the Municipal
Corporation. This admitted position reinforces the fact that the
promoter's obligation to execute conveyance had arisen long prior
to the filing of the application, and continued non-compliance on
his part justifies invocation of the remedy of deemed conveyance.
11. On perusal of the agreements executed under Section 4 of
MOFA, particularly Schedule 'A' annexed thereto, it clearly emerges
that the entire property forming the subject matter of the project
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admeasures 22,500 sq. mtrs. Clauses (38)(a) and (40) of the
agreements specifically cast an obligation upon the promoter to
form a co-operative society and to convey the property in its
entirety. These contractual stipulations are in consonance with the
statutory mandate and leave no ambiguity regarding the extent of
land to be conveyed.
12. In view of the aforesaid facts, and having regard to the
agreements executed under Section 4 of MOFA, the sanctioned
plans, and the Architect's Certificate, this Court is satisfied that the
petitioner has established its entitlement to unilateral deemed
conveyance in respect of the entire property admeasuring 22,500
sq. mtrs. The impugned order, having been passed without proper
appreciation of material on record and on an untenable ground,
cannot be sustained and is liable to be set aside.
13. Accordingly, Rule is made absolute in terms of prayer clause
(a).
14. The writ petition stands disposed of in aforesaid terms.
15. There shall be no order as to costs.
(AMIT BORKAR, J.)
