Hasmukh Narrotamdas Malkan vs The District Deputy Registrar Societies Mumbai City - 3
- Court
- Bombay High Court
CNR No : HCBM020119962025
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Hasmukh vs. The District Dy. Registrar & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1184 OF 2026
Hasmukh Narrotamdas Malkan .. Petitioner
V/s.
The District Deputy Registrar
Societies, Mumbai City - 3 & Ors. .. Respondents
………………………………………………………………………………………...
Mr. Sharan Jagtiani, Senior Advocate a/w Mr. Aditya Thakkar, Ms. Rishika Harish,
Mr. Ronish Mehta, Ms. Sonal Awasthi and Mr. Jerome Stephen i/b Vinod Mistry &
Co. for the Petitioner.
Mr. Vikrant Parshurami, AGP for Respondent No. 1 – State.
Mr. Shiraz Rustomjee, Senior Advocate a/w Mr. Viraj Parekh, Mr. Jugal Haria, Mr.
Rajesh Sharma, Mr. Wasim Shaikh and Ms. Tejashree Parab i/b Rajesh S. Sharma &
Associates for Respondent No. 2.
………………………………………………………………………………………
CORAM : FARHAN P. DUBASH, J.
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RESERVED ON : 8 OCTOBER 2026
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PRONOUNCED ON : 19 OCTOBER 2026
………………………………………………………………………………………
JUDGMENT:
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1. The present Writ Petition challenges the order dated 20 March 2025 passed
by Respondent No. 1 – District Deputy Registrar of Societies, Mumbai City –
3 (the “Competent Authority” ), granting deemed conveyance in favour of
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Hasmukh vs. The District Dy. Registrar & Ors.
Respondent No. 2 – Society (the “impugned order” ). The property comprises
Plot Nos. 157, 158 and 159 and Final Plot No. 324 of TPS II, Dixit Road,
Vile Parle (East), Mumbai – 400057, admeasuring 4133.68 sq. mtrs., with a
net area of 4059 sq. mtrs. after accounting for the setback (the “subject
plot” ).
2. The principal question considered in this judgment is whether the impugned
order addresses the material submissions advanced by the Petitioner and
gives reasons for rejecting them. This question assumes particular
significance because the application had earlier been remitted by this Court to
the Competent Authority with an express direction to record reasoned
findings on the parties’ submissions.
BRIEF FACTS
3. The material facts and the proceedings leading to the present Writ Petition
are set out below:
a) M/s. Vimal Builders was originally a partnership firm
comprising the Petitioner and Respondent Nos. 3 to 8. The firm was
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dissolved with effect from 29 January 1988, whereupon M/s. Vimal
Builders became the Petitioner’s proprietorship.
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b) By an Agreement for Sale dated 12 February 1973, the
partnership firm agreed to purchase the subject plot from the Jani’s.
Certain old chawls and shops occupied by tenants then stood on the plot.
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c) On 31 May 1974, the Municipal Corporation of Greater
Mumbai (“MCGM”) sanctioned a plan for construction of a building
known as ‘Vimal Apartments’, comprising a ground floor and six upper
floors, on the subject plot.
d) Construction of Vimal Apartments is stated to have been
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completed on or about 16 May 1975. A Building Completion Certificate
of that date was also issued.
e) M/s. Vimal Builders entered into agreements for sale with
individual purchasers of residential flats in Vimal Apartments. The sale of
flats is stated to have continued until 1979.
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f) On 26 February 1976, the MCGM is stated to have approved a
layout plan permitting construction of a second building on the subject
plot up to the plinth level. The plinth is stated to have been completed in
1976.
g) According to the Petitioner, encroachments and unauthorised
extensions by tenants occupying parts of the subject plot prevented further
progress, and the proposal for construction of the second building
remained pending before the MCGM.
h) The flat purchasers formed Respondent No. 2 – Society, which
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was registered on 30 October 1982 under the Maharashtra Co-operative
Societies Act, 1960, as ‘Vile Parle Vimal Gauri Co-operative Housing
Society Ltd.’ (the “Society” ).
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i) In 1989, M/s. Vimal Builders instituted Suit No. 2430 of 1989
in this Court against the Jani’s for specific performance of the Agreement
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for Sale dated 12 February 1973. The suit was decreed on 17 January
1992. Pursuant to the decree, the Prothonotary and Senior Master of this
Court executed a Deed of Conveyance of the subject plot in favour of M/s.
Vimal Builders.
j) The Society thereafter instituted Suit No. 4231 of 1993 in this
Court seeking conveyance of the subject plot. In 2012, following the
enhancement of the City Civil Court’s pecuniary jurisdiction, the suit was
transferred to the City Civil Court at Dindoshi and renumbered as S.C.
Suit No. 1358 of 2014.
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k) On 12 March 2020, the Society applied to withdraw that suit
with liberty to institute a fresh suit or approach the Competent Authority
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for deemed conveyance. The application was allowed on 12 January
2021.
l) M/s. Vimal Builders challenged that order before this Court
insofar as it granted liberty to institute a fresh suit on the same cause of
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action. By an order dated 16 March 2021, this Court recorded the
Society’s statement that it did not wish to file a fresh suit on the same
cause of action and permitted unconditional withdrawal of S.C. Suit No.
1358 of 2014.
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m) On 25 March 2021, the Society filed Application No. 50 of
2021 before the Competent Authority under Section 11 of the Maharashtra
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Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 (“MOFA”), seeking a certificate of
deemed conveyance in respect of the subject plot.
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n) By an order dated 11 August 2023, the Competent Authority
dismissed the application on the ground that disputed questions of
ownership could not be adjudicated in summary proceedings under
Section 11 of MOFA.
o) The Society challenged that order in Writ Petition No. 13103 of
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2023. By an order dated 29 November 2024, this Court, with the consent
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of the parties, set aside the order dated 11 August 2023 and remitted
Application No. 50 of 2021 to the Competent Authority for fresh
consideration. The Competent Authority was specifically directed to
consider the submissions advanced by the parties, record reasoned
findings on them and thereafter decide the application.
p) Upon remand, the Competent Authority reheard the application
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and passed the impugned order dated 20 March 2025, granting deemed
conveyance of the subject plot in favour of the Society.
4. In these circumstances, M/s. Vimal Builders has filed the present Writ
Petition. Mr. Sharan Jagtiani, learned Senior Counsel, appeared for the
Petitioner, whilst Mr. Shiraz Rustomjee, learned Senior Counsel, appeared
for Respondent No. 2 – Society.
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5. Both parties advanced extensive oral submissions and tendered written
submissions and compilations of judgments, which were taken on record.
The Petitioner challenged, amongst other matters, the authority of the
Society’s Secretary to file the application and the Society’s entitlement to
conveyance of the entire subject plot. It contended that the agreement(s) for
sale contemplated a layout comprising more than one building; that the
Society had acknowledged the Petitioner’s right to construct a second
building by utilising the balance FSI/TDR on three occasions, in 1989, 1993
and 2001; and that the plinth of that building, constructed pursuant to plans
approved in 1976, continued to exist on the subject plot. The parties
addressed arguments on these issues as well as on the absence of reasons in
the impugned order.
6. Having considered the impugned order and the rival submissions, I consider
it appropriate to decide the present Writ Petition on the ground that the
Competent Authority failed to address material submissions and record
reasons. The discussion that follows is therefore confined to that question.
References to the Petitioner’s other objections are made only to examine
whether they received consideration. No opinion is expressed on their merits
or on the Society’s ultimate entitlement to deemed conveyance.
SUBMISSIONS OF THE PETITIONER
7. Mr. Jagtiani submits that the impugned order contains no cogent reasons for
its conclusions and does not disclose consideration of the relevant material or
the submissions advanced before the Competent Authority. He contends that
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the duty to give reasons is an integral part of the principles of natural justice
and a safeguard against the arbitrary exercise of quasi-judicial power.
8. He submits that this duty applies to proceedings under Section 11 of MOFA,
in which the Competent Authority must determine the applicant’s entitlement
to deemed conveyance by a reasoned order. He relies upon the decision of
the Supreme Court in Arunkumar H. Shah HUF v. Avon Arcade Premises
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CHS & Ors.
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9. Mr. Jagtiani invites attention to the order dated 29 November 2024 by
which this Court remitted the application to the Competent Authority. He
submits that, despite the express direction to record reasoned findings on all
the submissions advanced by the parties, the impugned order does not
address the Petitioner’s material objections.
10. He further submits that the summary nature of the proceedings does not
dispense with the duty to apply one’s mind and give reasons. He refers to
Rule 13(3)(d) of the Maharashtra Ownership of Flats Rules, 1964, which
contemplates a hearing on merits when only one party is present, and Rule
13(5), which provides for oral arguments after receipt of the application and
replies, followed by an appropriate order. According to him, these provisions
require consideration of the material issues arising for determination.
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11. Mr. Jagtiani also relies upon Mohan Lal v. Kartar Singh to submit that an
authority exercising summary jurisdiction cannot disregard relevant and
germane issues.
1
2025 INSC 524
2
1995 Supp (4) SCC 684
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12. Relying upon Daya Ram v. Raghunath , he submits that reasons connect the
material considered with the conclusions reached. They enable the affected
party to understand why the decision has been made and enable a Court
exercising appellate or judicial review jurisdiction to examine its validity.
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13. Mr. Jagtiani places reliance upon Bharat Nidhi Limited v. SEBI and
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Bhansali Industries v. Union of India to submit that conclusions unsupported
by reasons cannot sustain an order. He also relies upon ECGC Limited v.
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Nifty Labs Private Limited on the obligation of an adjudicatory authority to
furnish reasons.
14. According to Mr. Jagtiani, the Competent Authority was required to consider
the agreements for sale as a whole and determine the parties’ respective
entitlements in light of all the relevant clauses. He also refers to the
sanctioned plan of 1974, demarcating the structures to be demolished; the
sanctioned plan of 1976, pursuant to which the Petitioner claims to have
commenced construction of the second building; and the alleged admission in
the Society’s plaint in Suit No. 4231 of 1993, acknowledging the Petitioner’s
balance FSI and expressing no objection to its use for that building. He relies
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upon Mazda Construction Company v. Sultanabad Darshan CHS Ltd. ,
Marathon Next Gen Realty Limited, Mumbai & Anr. v. Competent
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Authority, DDR and Ors. and Tushar Jivram Chauhan v. State of
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Maharashtra to submit that the Competent Authority must consider the
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2007 (11) SCC 241
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4
Order dated 11 June 2025 passed in Writ Petition No. 3977 of 2024
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2024 SCC OnLine Bom 3339
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Order dated 19 December 2024 passed in Commercial Arbitration Petition (L) No. 8122 of 2023
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2012 SCC OnLine Bom 1266
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2015 SCC OnLine Bom 4889
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2015 (4) Mh. L.J. 867
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agreements as a whole, together with the other relevant documents, whilst
determining the extent of the Society’s entitlement to deemed conveyance.
15. In response to the Society’s submission that this Court may sustain the
impugned order on an alternative ground, Mr. Jagtiani submits that such a
course is not warranted where the Competent Authority has failed to consider
the material issues placed before it. He contends that supplying reasons in
these circumstances would cure a substantive defect in the decision-making
process, rather than overcome a mere technicality. In this regard, he relies
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upon Mohinder Singh Gill v. Chief Election Commissioner .
16. Mr. Jagtiani accordingly submits that the impugned order is liable to be set
aside for failure to record reasons and comply with the principles of natural
justice.
SUBMISSIONS OF RESPONDENT NO. 2 – SOCIETY
17. Per contra , Mr. Rustomjee submits that the impugned order gives sufficient
reasons for granting deemed conveyance. He points out that the Competent
Authority summarised the Petitioner’s objections in paragraph 14 and
recorded its reasons in paragraph 16. He submits that the Authority correctly
held that disputes concerning title, FSI, development rights and the area of
the property fall within the jurisdiction of the Civil Court.
18. Mr. Rustomjee submits that the Competent Authority considered the
provisions of MOFA and the agreements for sale, particularly clause 22. He
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(1978) 1 SCC 405
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contends that disputes over ownership of the chawls and shops do not, by
themselves, prevent deemed conveyance and that the parties would remain
bound by the final orders in the pending civil proceedings. He further
submits that the Authority correctly recognised the Petitioner’s statutory
obligation as promoter to convey the property and the Society’s
corresponding right to apply under Section 11(3) of MOFA.
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19. Relying upon S. N. Mukherji v. Union of India , Mr. Rustomjee submits that
a quasi-judicial authority need not give reasons with the same degree of
elaboration as a Court of law. It is sufficient that the reasons are clear and
explicit and disclose consideration of the points in controversy.
20. Alternatively, Mr. Rustomjee submits that, even if the reasons are found
inadequate, this Court should sustain the impugned order on an alternative
ground. He relies upon Assistant General Manager, State Bank of India v.
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Tanya Energy Enterprises to submit that fairness and justice should prevail
over technicalities. He also relies upon Gayatri Construction v. State of
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Maharashtra to contend that a remand should be avoided where it would
serve no useful purpose.
21. Mr. Rustomjee accordingly seeks dismissal of the Petition, submitting that
the reasons recorded by the Competent Authority are sufficient to sustain the
grant of deemed conveyance.
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(1990) 4 SCC 594
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2025 INSC 1119
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2024 SCC OnLine Bom 438
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REASONS, ANALYSIS AND FINDINGS
22. I have heard both parties and, with their able assistance, perused the record.
The question is whether the impugned order discloses consideration of the
material objections to the Society’s application. In response to a specific
query from this Court, Mr. Rustomjee identified the following portions of
paragraph 16 as containing the relevant reasons and findings:
“16. … …
… …
v. This authority has power to decide the deemed conveyance
application which are summary in nature.
w. This Authority under Section 5-A of the MOFA has limited
jurisdiction to try and entertain the application on the basis of the
Agreements executed under Section 4 of MOFA between the Promoters and
the purchasers of the Flats.
x. Opponent No. 01 and 02 as owner and Developer, is falling in the
definition of the "Promoter", under 2 (C) of MOFA, 1963 and therefore
liable to comply with the obligation of granting conveyance within the time
stipulated under the provisions of the MOFA.
y. This authority perused all the submissions and documents placed
before this authority and concluded that there is dispute regarding the
ownership of chawl and shops and various cases are pending but though
there is litigation regarding the property and regarding the ownership of
chawl and shops and also there are cases pending in various court, the
Opponent no. 01 & 02 have not produced any restriction orders from any
forum to hold up the deemed conveyance proceeding. Therefore society's
legal right to get unilateral conveyance can not be held up. But it is
observed that the final order passed in the pending suit will be binding on
the concerned parties.
z. The Competent Authority has summary & limited powers only to
exercise & enforce the statutory obligation of Conveyance u/s. 11 of
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MOFA based on sale agreement. Any grievances of rights on FSI or dispute
regarding the property is a matter under Jurisdiction of Civil Court.
aa. The opponent no. 01 and 02 as the builder and landowners fall
within the definition of promoters under 2 (C) of MOFA, 1963 and as per
MOFA agreement executed with the flat purchasers, the builder as
promoter was under an obligation to execute conveyance in favour of
applicant society of subject property.
bb. As per the provisions of MOFA, 1963, if promoter fails to convey
the land and building to the organization of person who takes flats, which
is registered either as Co-operative Societies, or as accompany or to an
association of flat takers, then they can make application in writing to
concern Competent Authority as per section 11(3) of MOFA, 1963.
Reading of section 10 and 11 together with section 5 A the Competent
authority is a duty and obligation which the promoter is to perform in law.
That is to convey the title and execute the documents according to the
agreement.
cc. In clause no. 22 of the agreement for sale executed between the flat
purchasers and the builder/developer, the builder to convey the plot of land
described in the first schedule together with the building standing thereon in
favour of society after the said building is complete and after the said
society is registered.
dd. In the first schedule in MOFA agreement, the area is mentioned
admeasure 4944 sq. yards equivalent to 4433.87 sq. mtrs. being a portion
of big plot of land admeasuring 8118 sq. yards. Forming portion of S. No.
75 and 76 being plot no. 157, 158 and 159, final plot no. 324 (part of TPS
no. II) Vile Parle.
ee. As per section 11 of the MOFA, the Competent Authority is
required to convey the right, title and interest of the Promoter in
accordance with the flat purchaser's agreement. Therefore it is necessary,
to grant the certificate of entitlement for the land mentioned in the first
schedule mentioned in the MOFA agreement.
ff. In view of all above facts and circumstances, the application of
applicant society is accepted.”
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23. A perusal of these paragraphs shows that the Competent Authority
recognised both, its limited jurisdiction and its obligation to determine
entitlement to conveyance on the basis of the agreement(s) for sale. It
referred to clause 22 and the first schedule, but did not examine the other
clauses on which the Petitioner relied to contend that the agreed development
comprised more than one building. The impugned order does not explain
why those clauses did not affect the Society’s claim to conveyance of the
entire subject plot. Merely recording the Petitioner’s submissions in an earlier
part of the impugned order does not answer them. The requirement to
consider the agreements and other relevant documents, reflected in Mazda
Construction (supra), Marathon Next Gen Realty Limited (supra) and Tushar
Jivram Chauhan (supra), therefore remained unfulfilled.
24. The same difficulty arises in relation to the alleged admission in paragraph
12 of the Society’s plaint in Suit No. 4231 of 1993. The Competent Authority
recorded this objection in paragraph 14(e), but did not examine its relevance
or effect. The Petitioner relied upon that pleading, the contractual clauses and
the plan approved in 1976 to support its claim to the balance FSI and its right
to construct the second building, whose plinth was stated to remain on site.
The objection required consideration insofar as it bore upon the extent of
conveyance sought under the agreement(s) for sale. The general observation
that disputes concerning FSI and property rights fall within the Civil Court’s
jurisdiction does not explain why the documents relied upon had no bearing
on that enquiry.
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25. The Petitioner also disputed the authority of the Society’s Secretary to file
the application. The Competent Authority was required to consider that
objection and record its finding. The impugned order contains no such
determination.
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26. There is a further aspect. By its order dated 29 November 2024, this Court
had expressly directed the Competent Authority to consider the parties’
submissions and record reasoned findings before deciding the application
afresh. The omission to address the material objections identified above is
also a failure to comply with that direction. A recital of the submissions,
followed by conclusions that do not deal with them, does not fulfil the
purpose of the remand.
27. There is a further circumstance which underscores the need for a reasoned
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consideration of the parties’ submissions. By its order dated 11 August
2023, the Competent Authority had dismissed Application No. 50 of 2021 on
the ground that disputed questions of ownership could not be adjudicated in
summary proceedings under Section 11 of MOFA. That order was
subsequently set aside by this Court and the application remitted for fresh
consideration. Upon remand, the Competent Authority, on the same factual
material, allowed the application and granted deemed conveyance in favour
of the Society. The Authority was entitled to arrive at a different conclusion
upon reconsideration. It was, however, required to explain, by reference to
the relevant material and the rival submissions, why the Society was entitled
to the conveyance sought. In the circumstances of this case, the omission to
address the Petitioner’s material objections assumes added significance.
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28. The summary nature of the proceedings does not answer these deficiencies. It
may bear upon the scope of the enquiry and the length of the order, but it
does not relieve the Competent Authority of its duty to consider the issues
germane to that enquiry and explain its decision. The Petitioner was entitled
to know why its material objections did not affect the relief granted to the
Society. This approach is also supported by Mohan Lal (supra), relied upon
by Mr. Jagtiani.
29. The submission based on S. N. Mukherji (supra) must be considered in this
light. A quasi-judicial authority need not write an elaborate judgment or
answer every argument separately. Its reasons must, however, disclose
consideration of the material points in controversy. Here, the deficiency is
not the brevity of the reasons. It is the absence of any reasoned consideration
of the contractual clauses, the alleged admissions and supporting documents,
and the objection to the Secretary’s authority. The paragraphs identified by
Mr. Rustomjee state the promoter’s obligation to convey and refer to clause
22, but do not explain why the Petitioner’s objections to the conveyance
sought were rejected. The decision therefore does not assist the Society.
30. Tanya Energy (supra) also does not assist the Society. That decision
recognises that, in an appropriate case, an alternative ground traceable to the
factual narrative or relevant record may sustain an administrative order,
provided the affected party has notice and an opportunity to respond. The
present case requires consideration of competing submissions concerning the
agreements and the supporting documents, on which the Competent
Authority has recorded no findings despite the earlier remand. Sustaining the
impugned order would require this Court to undertake that examination in the
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first instance. In these circumstances, I do not consider it appropriate to
uphold the impugned order by supplying an alternative basis for the grant of
deemed conveyance.
31. The reliance upon Gayatri Construction (supra) also does not advance the
Society’s case. The principle invoked is that a remand need not follow where
it would serve no useful purpose. In the present case, reconsideration would
serve a specific purpose - the Competent Authority must examine the
material objections, consider the Society’s response and explain its
determination of the application. The outcome of that exercise has not been
decided by this Court. The defect, therefore, cannot be treated as an empty
formality. In these circumstances, the principle relied upon by Mr. Jagtiani in
Mohinder Singh Gill (supra) supports requiring the Competent Authority to
give its own reasons for its decision.
32. The requirement is particularly clear and well settled in proceedings under
Section 11 of MOFA. In Arunkumar H. Shah HUF (supra), the Supreme
Court has emphasised the need for a reasoned order when deciding an
application under that provision. The Competent Authority’s reference to the
statutory duty to convey does not dispense with the need to determine the
entitlement claimed in the particular application and address the material
objections to it.
33. The decisions in Daya Ram (supra), Bharat Nidhi Limited (supra), Bhansali
Industries (supra) and ECGC Limited (supra) likewise underscore the
importance of reasons in adjudication. Reasons enable the parties to
understand the decision and permit meaningful judicial scrutiny. In the
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present case, the omissions identified above concern matters bearing directly
upon the application. Taken together, they render the impugned order
unsustainable.
OPERATIVE ORDER
35. For all these reasons, the impugned order is required to be set aside and
Application No. 50 of 2021 remitted to the Competent Authority for fresh
consideration. The Authority shall hear the parties, consider their material
submissions and the relevant documents, and pass a reasoned order in
accordance with law. All contentions on merits remain open. The present
Writ Petition is accordingly disposed of in terms of the following order:
:: ORDER ::
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A. The impugned order dated 20 March 2025 passed by Respondent No.
1 is set aside.
B. Application No. 50 of 2021 is remitted to Respondent No. 1 for fresh
consideration. Respondent No. 1 shall afford all parties an opportunity
of being heard, consider their material submissions and the relevant
documents, and thereafter pass a reasoned order in accordance with
law. Considering that the application was filed in 2021 and will now
be heard and decided for the third time, Respondent No. 1 shall
complete this exercise as expeditiously as possible and in any event,
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before 31 March 2027.
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C. It is clarified that this judgment is confined to the failure of
Respondent No. 1 to address the material submissions advanced
before it and record reasons for its decision. References to the
Petitioner’s other objections are made only to examine whether they
received consideration. This Court has expressed no opinion on the
merits of those objections or on the Society’s entitlement to deemed
conveyance. All contentions of the parties on the merits remain open
for determination by Respondent No. 1 in accordance with law.
D. There shall be no order as to costs.
34. This judgment shall be digitally signed by the Personal Assistant / Private
Secretary of this Court. All persons / parties shall act on the digitally signed
copy of this judgment, downloaded from the official website of the Bombay
High Court.
( FARHAN P. DUBASH, J. )
Shubham Gadhavepatil
Digitally signed
by SHUBHAM
SHESHRAO
GADHAVEPATIL
Date:
2026.10.19
19:22:45 +0530
SHUBHAM
SHESHRAO
GADHAVEPATIL
Page 18 of 18
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Judgment dated 19 October 2026
Uploaded on - 19/10/2026 Downloaded on - 19/10/2026 19:33:05
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