[Cites 5, Cited by 0]
Bombay High Court
Shrinath Auto Works And Service Station vs The State Of Maharashtra And Ors on 30 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:15109
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Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.17727 OF 2024
SHABNOOR Shreenath Auto Works & Service Station ... Petitioner
AYUB
PATHAN V/s.
Digitally signed by
SHABNOOR AYUB
The State of Maharashtra & Ors. ... Respondents
PATHAN
Date: 2026.03.30
17:59:25 +0530
Mr. Radhikesh V. Uttarwar a/w Pooja R. Thakkur,
Pradnya C. Solanki, for the Petitioner.
Ms. Snehal S. Jadhav, AGP, for the State - Respondent
No.1.
Mr. Abhay Dhodiwal a/w Mr. Rohit Jain and Rushabh
Bhandari i/b Jayakar and Partners, for Respondent
No.2.
CORAM : AMIT BORKAR, J.
DATED : MARCH 30, 2026
P.C.:
1. The present Petition takes exception to two orders passed by
the Competent Authority, namely, the order dated 30 April 2013
issued in exercise of powers under Section 11 of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963 (MOFA), and the
subsequent order dated 31 March 2025 whereby an application
seeking issuance of a corrigendum to the earlier order came to be
allowed for the purpose of including the name of the owner. By the
order dated 30 April 2013, unilateral deemed conveyance was
granted in respect of land admeasuring 3640 sq. mtrs. However,
while granting such conveyance, the Competent Authority
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expressly safeguarded and preserved the rights of the owner and
the developer in respect of the balance Floor Space Index (FSI)
and the requisite appurtenant area, thereby indicating that the
grant of conveyance was not intended to extinguish or affect such
subsisting rights.
2. It is the case of the respondent-Society that when it
approached the Registering Authority for registration of the
unilateral deemed conveyance pursuant to the order dated 30
April 2013, an objection was raised on the ground that the owner
of the property had not been impleaded as a party in the
proceedings under Section 11 of MOFA. On this premise, the
Registering Authority declined to proceed with the registration of
the conveyance. In view of such refusal, the respondent-Society
was constrained to move an application before the Competent
Authority seeking issuance of a corrigendum so as to implead the
owner in the original proceedings. The said application, however,
was opposed by the present petitioner, who questioned the very
maintainability of such an application on the ground that the
original proceedings had already attained finality and could not be
reopened in the guise of a corrigendum.
3. Learned Advocate for the petitioner submitted that the
application seeking issuance of a corrigendum was filed after an
inordinate delay of eleven years from the date of the original
order, and therefore, the same was liable to be rejected on the
ground of delay and laches. It was further contended that a
substantive defect, such as non-impleadment of a necessary party
in the original proceedings, cannot be cured by way of a
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corrigendum, as such a course would amount to altering the very
foundation of the original order and would seriously prejudice the
vested rights of the petitioner. On this basis, it was urged that the
impugned order deserves to be quashed and set aside. It was also
submitted that under the order dated 30 April 2013, the rights in
respect of the balance FSI and the Transferable Development
Rights (TDR) had crystallized and attained finality. Acting upon
such crystallized rights, the petitioner, having derived title from
the erstwhile developer, has already undertaken and completed
construction of an additional second building. According to the
petitioner, the impugned corrigendum order has the effect of
unsettling these accrued rights and would adversely impact not
only the petitioner but also third-party purchasers in the
subsequently constructed building forming part of the same
development.
4. A plain reading of Section 11(5) of the Maharashtra
Ownership Flats Act, 1963 makes it clear that once a certificate
issued by the Competent Authority under Section 11(3) is
produced before the Registering Officer, a statutory duty is cast
upon the Registering Officer to effect registration of the deemed
conveyance. The scheme of the provision does not confer any
adjudicatory power upon the Registering Officer to examine the
legality, correctness, or propriety of the certificate so issued. The
legislative intent is to ensure expeditious completion of
conveyance in favour of the society upon certification by the
Competent Authority. The only limited safeguard provided under
Section 11(5) is the requirement of affording an opportunity of
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hearing to the promoter, which indicates that the Registering
Officer's role is procedural in nature.
5. Even if it is assumed that the owner was not impleaded as a
party in the proceedings before the Competent Authority, such
non-joinder would, at the highest, amount to an irregularity or
illegality in the decision-making process of the Competent
Authority. Such a defect may render the order vulnerable to
challenge in appropriate substantive proceedings before a
competent forum. However, the Registering Authority, being bound
by the statutory mandate under Section 11(5), cannot refuse
registration of the deemed conveyance on this ground alone.
Permitting such refusal would amount to conferring upon the
Registering Authority a power of review or appeal over the
decision of the Competent Authority, which is clearly not
contemplated under the statutory framework.
6. Insofar as the submission advanced on behalf of the
petitioner is concerned, this Court finds substance in the
contention that inclusion of the owner by way of a corrigendum
goes beyond a mere clerical or typographical correction and, in
effect, results in granting substantive relief. A corrigendum cannot
be utilized as a device to alter the nature or scope of the original
order or to cure foundational defects such as non-impleadment of
a necessary party. Such an exercise would amount to re-opening
and modifying the original proceedings, which is impermissible in
law. This legal position stands settled by the judgment of this Court
in Kashish Park Reality Private Limited & Anr. vs. State of
Maharashtra & Ors., reported in 2021 (3) Mh.L.J. 778 , wherein it
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has been held that a corrigendum cannot be used to effect
substantive changes in an order that has already attained finality.
7. It is also a matter of record that the respondent-Society had
previously sought issuance of a corrigendum for correction of the
CTS number from CTS No. 268 to CTS No. 368, which was duly
allowed by the Competent Authority and has attained finality.
Accordingly, the Registering Authority is required to proceed on
the basis that CTS No. 368 constitutes the subject property for the
purpose of registration of the deemed conveyance.
8. In view of the aforesaid discussion, this Court is of the
considered opinion that the appropriate course would be to direct
the Registering Authority to register the unilateral deemed
conveyance certificate dated 30 April 2013, as corrected to the
extent of CTS No. 368. At the same time, the impugned order
insofar as it holds that an application for issuance of a
corrigendum to implead the owner is maintainable, cannot be
sustained.
9. Accordingly, this Court holds that the application for
issuance of a corrigendum, in the nature sought by the
respondent-Society for impleadment of the owner, is not
maintainable in law. The Registering Authority is directed to
register the deemed conveyance certificate dated 30 April 2013, as
corrected by substitution of CTS No. 368, within a period of four
weeks from the date of production of this order, in order to give
effect to the statutory mandate under Section 11(5) of MOFA.
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10. It is clarified that all contentions of the petitioner in respect
of its rights, as expressly preserved under the order dated 30 April
2013, including the right of the developer and the owner to utilize
the balance FSI and Transferable Development Rights (TDR), are
kept open.
11. With the aforesaid observations and directions, the Writ
Petition stands disposed of. There shall be no order as to costs.
(AMIT BORKAR, J.)
