Full Judgment Text
2025:BHC-OS:26068
wp35377-25.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR
MOHITE
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2025.12.23
17:33:00 +0530
WRIT PETITION (L) NO. 35377 OF 2025
Velentine Properties Private Limited .. Petitioner
Versus
State of Maharashtra and Ors. .. Respondents
Adv. Vivek Kantawala a/w Adv. Ajit Makhijani and Adv. Rajat Jain i/b
M/s.M. M. Legal Associates, Advocates for the Petitioner.
Mr. Mohit Jadhav a/w Mr. Shamrao Gore, AGP, for Respondent Nos. 1
& 2 -State.
Adv. Vishal Kanade a/w Adv. Tanaya Patankar, Adv. Kartik Tiwari,
Adv. Devang Shah and Adv. Aditya Kanchan i/b Lakshyavedhi Legal,
Advocates for Respondent No.3.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: DECEMBER 10, 2025
PRONOUNCED ON: DECEMBER 23, 2025
JUDGEMENT:-
1. Rule. Rule made returnable forthwith and heard finally by
consent of parties.
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2. This Writ Petition challenges an Order dated 16 October 2025
passed by Respondent No.2 i.e. the District Deputy Registrar – Co-operative
Society, Mumbai City (4), Competent Authority under Section 5A of the
Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963 (for short “MOFA”), whereby
Respondent No.2 has granted a Unilateral Deemed Conveyance in favour of
Respondent No.3 Society.
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3. Before considering the impugned Order dated 16 October 2025,
and the submissions of the parties in respect thereof, it would be appropriate
to set out the facts in the matter.
4. The Petitioner is the Promoter, Owner and Developer of a
property admeasuring 27,116.30 square meters which, subsequently, in view
of multiple amalgamations and subdivisions, has been divided into sub-plots
marked as Plot A, B, C, D, E, F and G in terms of approved layouts from time
to time.
5. These plots were designated for the construction of multi-storied
buildings as per the sanctioned layout plan. A portion of the said larger land,
admeasuring approx.6,536.30 square meters, and bearing CTS
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Nos.692/A/2/2/A/1, which forms part of a single layout, is identified as the
aforementioned Sub-Plot ‘A’.
6. Sub-Plot ‘A’ comprises of multiple buildings, out of which
Respondent No.3 consists only of Wings A, B, C and F of Building A-2,
constructed on the said land.
7. The Petitioner had executed Sale Agreements with the members
of Respondent No.3, 4 and 5 which agreements contain clear, binding and
specific clauses pertaining to the execution of the conveyance. The Petitioner
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had referred to one such Agreement for Sale dated 31 July 1999, executed
between the Petitioner and one of the members of Respondent No.3, which
was produced by Respondent No.3 before Respondent No.2. The Petitioner
has referred to Clauses 26 and 27 of the said Agreement and stated that a
perusal of the aforesaid clauses demonstrates that the Developer, i.e. the
Petitioner, had expressly reserved its right to determine the extent, mode and
timing of the conveyance or lease, including the option to execute a long-term
lease in lieu of an outright conveyance. Furthermore, the Petitioner stated
that it has also been recorded that the Petitioner shall be entitled at its option
to form a single Organization of all the Premises to be constructed on the said
land i.e. of Respondent Nos.3, 4 and 5 and to execute a conveyance / lease in
respect of the said land in favour of Respondent Nos.3, 4 and 5.
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8. It is the case of the Petitioner that despite the aforesaid clear and
unambiguous terms and conditions, Respondent No.3 prematurely raised a
demand for conveyance without waiting for the completion of the entire
development of the said land. The Petitioner states that, in view of the said
demand, the Petitioner, in good faith, demonstrated its willingness to convey
the conveyable portion of the said land of Respondent Nos.3, 4 and 5 by
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preparing and sharing a joint conveyance deed. By an email dated 6
February 2025, addressed by the Petitioner to Respondent No.3, the
Petitioner forwarded the said draft conveyance to Respondent No.3.
9. Thereafter, the Petitioner issued a reminder to Respondent No.3
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by its email dated 6 May 2025 requesting for a response to the Draft
Conveyance. However, instead of responding to the said communications of
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the Petitioner, Respondent No.3 directly issued a legal notice dated 19 May
2025. In response to the same, the Petitioner once again shared a Draft
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Conveyance by its Reply dated 23 May 2025 and reiterated its willingness to
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execute the conveyance. In response to the said reply dated 23 May 2025,
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Respondent No.3 issued a letter dated 30 May 2025. By the said letter
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dated 30 May 2025, Respondent No.3 raised objections with respect to the
retention of an area admeasuring 146 sq.mtrs by the Petitioner out of the
total area admeasuring 6536.30 sq.mtrs. of the said land and Respondent
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No.3 further objected that only 43.21% of the said land was being conveyed to
Respondent No.3.
10. The Petitioner dealt with the aforesaid objections by its letter
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dated 17 June 2025 addressed to Respondent No.3. By the said letter, the
Petitioner stated that, as per the terms and conditions as stipulated in the
agreements executed with all the members of Respondent Nos.3, 4 and 5, the
Petitioner was entitled to develop the retained area, as the same forms part of
the residual area to be developed in accordance with the sanctioned plan,
which is subject to amendments from time to time. Further, the Petitioner
stated that the said land is a part of a unified layout and, hence, the same will
be divided between adjoining Societies and, accordingly, only 43.21% of the
said land can be conveyed to Respondent No.3.
11. The Petitioner states that, despite having any discussions with
the Petitioner, Respondent No.3 filed Application bearing No.148 of 2025,
under Section 11 of MOFA, before Respondent No.2, seeking deemed
conveyance in favour of Respondent No.3 for an area admeasuring 3215.19
sq.mtrs., including 5% open amenity space from the said land. The
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Petitioner filed a reply to the said Application on 13 August 2025 dealing
with the contentions therein.
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12. Subsequently, the Petitioner and Respondent No.3 addressed
their oral arguments before Respondent No.2 and thereafter, liberty was
given to the parties to file their respective written notes of arguments.
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Pursuant thereto, the Petitioner filed written notes of arguments dated 19
September 2025. The Petitioner is not aware if Respondent No.3 has filed
any written arguments since the Petitioner was not served with the same.
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13. Thereafter, the impugned Order dated 16 October 2025 was
passed by Respondent No.3. It is the case of the Petitioner that by the
impugned Order, Respondent No.2 erroneously conveyed 49.19% of the
subject land in favour of Respondent No.3, without due appreciation of the
factual and documentary evidence on record.
14. It is in these circumstances that the Petitioner filed the present
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Petition impugning the Order dated 16 October 2025 passed by Respondent
No.2.
15. Mr.Vivek Kantawala, the learned counsel appearing on behalf of
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the Petitioner, made submissions impugning the said Order dated 16
October 2025.
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16. Mr.Kantawala first submitted that the Application filed by
Respondent No.3 was premature. In this context, he submitted that Rule 9 of
the Maharashtra Ownership Flats (Regulations of the Promotion of
Construction, Sale, Management and Transfer) Rules, 1964 (“MOFA Rules”)]
mandate execution of conveyance within a period of four months only where
no period is agreed upon between the parties. He submitted that, in the
present case, the parties are governed by a specific and binding contractual
arrangement. Clause 26 of the Agreement for Sale provides that the
Petitioner shall be entitled to form separate co-operative societies and obtain
separate conveyances / leases for one or more structures, and that such
conveyance(s) shall be executed only upon full completion of the entire
development on the said land. The contractual stipulation thus postpones the
obligation to convey title until completion of all buildings and amenities
forming part of the sanctioned layout. Consequently, the Petitioner’s
readiness and willingness to execute the conveyance arises only upon full
development, and not prior thereto. Mr.Kantawala submitted that the
present Application filed before Respondent No.2, in disregard of the express
terms of the said Agreement, and contrary to the contractual time-line
mutually agreed upon, is therefore, premature.
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17. Mr.Kantawala submitted that Respondent No.3’s claim is ex-
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facie contrary to the Government of Maharashtra’s Resolution dated 22
June 2018 (“said GR”) which mandates that in multi-building layouts,
conveyance must be restricted only to the proportionate share relatable to
completed buildings and, wherein TDR is used, it should be limited further to
the plinth and appurtenant area.
18. Mr.Kantawala submitted that the Petitioner had complied with
this requirement and offered more than what the said G. R. prescribes. The
Respondent No.3 however, sought 3215.19 sq.mtrs. based on built-up area
calculations, which the said G. R. expressly prohibits.
19. Mr.Kantawala submitted that the larger layout admeasures
6390.30 sq.mtrs., on which three buildings of three different societies stand,
with common areas shared across all. Further, Mr.Kantawala submitted that
the discrepancies in Respondent No.3’s Architect Report warrant
appointment of an independent Architect, as contemplated under the said
G. R. In this context, Mr.Kantawala referred to the judgement of this Court in
Sushil Samir CHSL vs. DDR, Mumbai and Ors. 2014 (4) Mah.L.J. 888 .
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20. Mr.Kantawala further submitted that the Petitioner had always
disclosed phased development under Clauses 21(b), 26 and 27 of the
Agreements for sale and had retained approximately 146 sq.mtrs. for future
developments He submitted that the granting of the Application of
Respondent No.3 by Respondent No.2 leads to categorically conveying this
retained portion, and, therefore, would lead to multiplicity of disputes and
violation of the said G. R.
21. Next, Mr.Kantawala submitted that there was no failure or
neglect under Section 11(3) of MOFA by the Petitioner warranting an
Application for deemed conveyance by Respondent No.3. In this context, he
submitted that Section 11(3) permits deemed conveyance only when the
Developer has failed or neglected to execute it. He submitted that, in the
present case, the Developer, i.e. the Petitioner, issued a draft conveyance on
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6 February 2025, followed by a reminder on 6 May 2025, evidencing
continuous readiness and willingness on the part of the Petitioner to execute
the conveyance. He submitted that, in these circumstances, the statutory
condition precedent is therefore, not met, thereby rendering the Application
non-maintainable. Mr.Kantawala further submitted that Respondent No.3
had deliberately suppressed the draft deed of conveyance, reminders and
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replies, including the Petitioner’s detailed response dated 23 May 2025
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enclosing the draft once again. Mr.Kantawala submitted that such
concealment constitutes mala fide and amounts to approaching Respondent
No.2 with unclean hands. Mr.Kantawala submitted that, in these
circumstances, Respondent No.3 would not be entitled to any relief from
Respondent No.2.
22. Further, in support of his submissions, Mr.Kantawala relied
upon a judgment of this Court in M/s. S & M Enterprises vs. The Palazzo
Building No. 1 CHSL & Ors. [in Writ Petition No.12297 of 2022] .
Mr.Kantawala submitted that, in this judgement, this Court held that in
phased developments, deemed conveyance is restricted to the proportionate
undivided share corresponding to completed construction. Conveyance of the
entire land prior to completion of the overall project is impermissible as it
prejudices the developer's rights. He submitted that the ratio of this case
squarely applied to the present case.
23. On the other hand, Mr.Vishal Kanade, the learned counsel
appearing on behalf of Respondent No.3, opposed the granting of any relief
in the Petition. Mr.Kanade submitted that the Petitioner’s case, that it was
entitled to retain an area of 146 sq.mtrs., ought to be rejected. In this
context, Mr.Kanade submitted that there was no contractual basis for
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retention of any area. Further, Mr.Kanade submitted that there was
absolutely no pleading by the Petitioner as to why and how the Petitioner is
entitled to an exact area of 146 sq. mtrs. nor is its claim supported by any
cogent document. Without prejudice to the said argument, Mr.Kanade
submitted that, if the basis or challenge to the impugned order is the alleged
right of retention of 146 sq. mtrs., then it is beyond the purview of the
jurisdiction of the Competent Authority. In this context, Mr.Kanade relied
upon the judgement of this Court in M/s. ACME Enterprises v/s Deputy
Registrar Cooperative Societies & Ors., (2023) SCC OnLine BOM 1102 . Mr.
Kanade submitted that, hence, the remedy of the Petitioner was to file a suit
for declaration of rights qua the retained area. Further, Mr.Kanade
submitted that the impugned Order has been passed after considering all the
relevant material on record.
24. Further, Mr. Kanade submitted that none of the grounds urged
by the Petitioner hold any merits. In this context, Mr. Kanade submitted that
the Petitioner shared a draft of a joint-conveyance deed by
withholding/retaining the said area of 146 Sq Mts. There was no explanation
as to why this area was being retained. This was an explicit finding of the
Competent Authority. Mr.Kanade submitted that, in these circumstances, it
cannot lie in the mouth of the promoter to state that the statutory obligation
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of executing conveyance ends the moment an offer is made, notwithstanding,
that such an offer is inherently untenable.
25. Further, Mr.Kanade submitted that the Petitioner was under an
obligation to execute the conveyance of land and building in favour of the
society within four months from the date of registration of Respondent No.3,
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which was on 17 February 2004. The draft of the joint-conveyance, that too
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after retaining certain portion, only came on 6 February 2025. Mr.Kanade
submitted that this aspect has also been dealt with by the Competent
Authority.
26. Next, Mr.Kanade relied on the judgement of this Hon'ble Court
in Lok Housing and Construction Limited v/s. State of Maharashtra & Ors.,
2025 SCC Online Bom 711 and submitted that the reliance of the Petitioner
on clauses 26 and 27 of the MOFA Agreement, to contend that the
Respondent No. 3's application for deemed conveyance is premature, is
misplaced.
27. Next, Mr.Kanade submitted that it is not in dispute that the
Architect's Certificate produced by Respondent No. 3 before the Competent
authority is in consonance with the sanctioned/approved plan. Mr.Kanade
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submitted that, on the contrary, the Architect's certificate produced by the
Petitioner is only on basis of calculation of the Appurtenant Area and Plinth
area, without any basis as to why this calculation is applicable to Respondent
No. 3's case.
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28. As far as the Government Resolution dated 22 June 2018 is
concerned, Mr.Kanade submitted that Clause B (1) specifically deals with a
situation where there are many societies and construction of some of them is
incomplete. He further submitted that Clause B (2) had to be read with
Clause B (1) and thus, it deals with a situation where circumstances exist as in
clause B1, however, where additional TDR is utilised.
29. Mr.Kanade submitted that a reading of Clause B (1) would show
that conveyance can be made of an undivided share of occupancy right in the
proportion of construction on the proportionate area of the construction of
the Building of such Society or on the basis of ground coverage or or on the
basis of the plinth area alongwith open space, common services and facilities,
etc.
30. Mr.Kanade submitted that this Court in the case of Akshay
Girikunj-3 CHSL v/s. State of Maharashtra, in Writ Petition (L) No. 603 of
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2023 had left it to the wisdom of the Competent authority to grant either land
proportionate to the FSI utilised for construction of the Society's building or
to convey footprint of the building alongwith proportionate undivided share
to the society in respect of common areas, depending on the circumstances of
each case.
31. Further, Mr.Kanade submitted that Clause B (3) deals with a
situation where there are more than one societies and other societies are not
cooperating for conducting measurement of the land of the Applicant Society.
Mr.Kanade submitted that, only in that case, it is contemplated that an
Architect may be appointed for measurement of the land. Mr.Kanade
submitted that, in the present case, although Respondent No. 3 Society has
filed its Application for deemed conveyance, the other Societies, despite
having an intimation of the same, have chosen to not contest the application.
32. As far as the judgment in M/s. S & M Enterprises (Supra) cited
by Mr.Kantawala is concerned, Mr.Kanade submitted that the same is not at
all applicable to the facts of the case since the facts of that case are entirely
different. Mr.Kanade submitted that, in the present case, the construction of
the layout has been completed and the Petitioner has been unable to
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demonstrate from the sanctioned plan as to how and if any area and/or FSI at
all has remained available for further construction.
33. Next, Mr.Kanade referred to the judgement of this Court in
Sushil Samir CHSL (Supra) cited by Mr.Kantawala and stated that the same
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is much prior to the Government Resolution dated 22 June 2018 and it does
not consider the position of law that the jurisdiction of the Competent
Authority is extremely limited in the enquiry that it can conduct, and that
while following the summary procedure, it cannot conclusively and finally
decided the question of title.
34. Mr.Kanade submitted that, for all these reasons, the Writ
Petition deserves to be dismissed.
35. In Rejoinder, Mr.Kantawala referred to the judgement in Lok
Housing and Construction Limited (Supra) cited by Mr.Kanade and
submitted that the said decision concerns a situation where FSI has already
been consumed. By contrast, in the present matter, FSI has not been
consumed, and, therefore, the ratio in the said case was factually inapplicable
and does not assist Respondent No.3.
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36. Mr.Kantawala referred to the judgment in the case of Akshay
Girikunj (Supra), cited by Mr.Kanade and submitted that the facts and
regulatory context in that case differ materially from the present case. He
submitted that the said case does not address the specific combination of a
completed building, disclosed conveyance and retained area recorded in the
Deed of Conveyance before the Authority.
37. Lastly, Mr.Kantawala refer to the judgment in M/s. ACME
Enterprises (Supra) and submitted that the same relates to availability of a
civil remedy versus writ jurisdiction. He submitted that Respondent No.3’s
reliance on ACME (supra) therefore mischaracterises the remedy question
and does not detract from the Petitioner’s prima facie entitlement of the
retained area. He submitted that the said judgement makes it clear that the
Competent Authority cannot convey more than what the promoter has agreed
to convey, and must determine the scope of the promotor’s obligation,
whether such obligation has become enforceable and whether any default has
occurred. Mr.Kantawala submitted that this principle squarely supports the
case of the Petitioner. Petitioner’s readiness to execute the conveyance by
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letter dated 6 February 2025 issued to all three Societies, including
Respondent No.3, was material which the Competent Authority, i.e.
Respondent No.2, failed to consider, thereby rendering its decision contrary
to law and record.
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38. Mr.Kantawala submitted that, in light of the submissions made
by him, the present Petition deserves to be allowed.
ANALYSIS AND FINDINGS
39. I have heard the learned counsel for the parties and perused the
documents on record.
40. The first challenge of the Petitioner in respect of impugned
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Order dated 16 October 2025 is that the Application filed by Respondent
No.3 before Respondent No.2 was wholly premature and unsustainable. In
this context, Mr.Kantawala submitted that Rule 9 of the MOF Rules,
mandates execution of conveyance within four months only where no period
is agreed upon between the parties. In the present case, the parties were
governed by a specific and binding contractual arrangement. Mr.Kantawala
submitted that Clause 26 of the Agreement for Sale is such an agreement. He
submitted that, in light of the said Clause 26, the question, of the Petitioner
executing the conveyance arises only after full development and not prior
thereto. Mr.Kantawala also submitted that the present Application filed by
Respondent No.3 before Respondent No.2, in disregard of the express terms
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of the said Agreement, and contrary to the contractual time-line mutually
agreed upon, is therefore, premature.
41. Clause 26 of the Agreement reads as under:
“26. In respect of Plot "A" more particularly described
in second Schedule hereunder written, the Developers shall
be entitled at their option to form the single Organisation
of all the Premises to be constructed on the said Property
and to execute cause and/or cause the owners to execute
the Conveyance/lease in respect of the said Property and
the structures thereon in favour of such Organisation/s.
The Developers shall also at their option be entitled to
form different co-operative societies for one or more
structures to be constructed on the Property described in
the Second Schedule hereunder written and to cause the
Owners to execute separate Conveyance/lease in favour of
such Organisation/s, as the case may be. Such
conveyance / lease and / or conveyances/leases shall,
however, be executed only after the entire Property
described in the Second Schedule hereunder written is
fully developed (i.e. all the Buildings as may be permitted
by the Concerned Authorities shall have been fully
constructed on the said Property)”
42. Further, Rule 9 of the MOF Rules, 1964 reads as under:
“Period for conveyance of title of promoter to organisation
of flat purchasers:- If no period for conveying the title of
the promoter to the organisation of the flat purchasers is
agreed upon, the promoter shall (subject to his right to
dispose of the remaining flats, if any) execute the
conveyance within four months from the date on which the
Co-operative society or the company is registered or, as the
case may be, the association of the flat takers is duly
constituted.
"When a promoter has submitted his property to the
provisions of the Maharashtra Apartment Ownership Act,
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1970 by executing and registering a Declaration as
required by section 2 of the Act, and no period for
conveying the title of the promoter in respect of an
apartment to each apartment taker is agreed upon, the
promoter shall execute the conveyance or deed of
apartment in favour of each apartment taker within four
months from the date the apartment taker has entered into
possession of his apartment.
The promoter shall file with the Competent Authority a
copy of the conveyance executed by him under sub-section
(1) of section 11 within a period of two months from the
date of its execution.”
43. Under Rule 9 of the MOF Rules, the promoter is required to
execute the conveyance within four months from the date on which the Co-
operative Society or the Company is registered or, as the case may be, the
Association of Flat takers is duly constituted. It is now well settled law that
Rule 9 of the MOF Rules overrides a clause like Clause 27 of the Agreement
which postpones the executing of a conveyance. This is absolutely clear from
the judgement of this Court in Lok Housing and Construction Limited
(Supra) . Paragraphs 17 to 25 of the said Judgement illuminate this point
and read as under:
“17. The submission advanced on behalf of the
petitioner, seeking to justify delay in execution of
conveyance by relying upon contractual Clauses 25 and 28
to contend that conveyance in favour of society can be
executed only after completion of the entire development
scheme, cannot be accepted in the face of the clear
statutory mandate contained in Rule 9 of the Maharashtra
Ownership Flats (Regulation of the Promotion of
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Construction, Sale, Management and Transfer) Rules, 1964
(hereinafter referred to as "the MOFA Rules"). Rule 9 leaves
no room for ambiguity and categorically prescribes the
time-frame within which a promoter is required to convey
title to the co-operative housing society or association of
flat purchasers. The rule provides that, unless a specific
period is mutually agreed upon between the parties, the
promoter shall execute the conveyance deed within four
months from the date of registration of the society.
18. The purpose of Rule 9 must be understood in
light of the statutory scheme of MOFA, particularly Section
11, which casts a positive obligation upon the promoter to
execute the conveyance of title in favour of the
organisation of flat purchasers. The rule is not merely
procedural in nature but is a substantive safeguard against
indefinite and deliberate delay on the part of the promoter.
The four-month period is a codified timeline intended to
operationalise the legislative objective of ensuring that flat
purchasers are not left in a state of uncertainty regarding
title to the land and building in which their flats are
situated. This obligation cannot be evaded on the basis of
private contractual stipulations that seek to indefinitely
defer the promoter's duty, nor can it be defeated by
reference to alleged defaults by individual purchasers.
MOFA being a social welfare legislation intended to protect
the interests of flat purchasers must be interpreted in a
purposive and beneficial manner. It is settled law that in
interpreting such welfare statutes, the court must give
precedence to the legislative intent over the literal terms of
any private agreement which runs counter to such intent.
19. Of particular significance is the use of the word
"period" in Rule 9 of the MOFA Rules. The legislature has
deliberately chosen this word to signify a determinate,
fixed and measurable segment of time. The ordinary and
grammatical meaning of "period" is a definite span of time,
not subject to vague or indefinite conditions. This
interpretation is consistent with the well-recognised
principles of statutory interpretation, whereby words used
in subordinate legislation are to be given their natural and
popular meaning unless the context requires otherwise.
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20. In the present case, the statutory language is
clear and unambiguous. It therefore warrants a plain and
literal interpretation. The term "period" in Rule 9 cannot be
interpreted to mean an indeterminate, future event-based
time-line such as "completion of the entire development
scheme". Such an interpretation would amount to
substituting a definite and enforceable time-frame with a
contingent and uncertain condition, thereby diluting the
efficacy of Rule 9. Courts are not permitted to rewrite
statutory provisions under the guise of interpretation,
especially when doing so would defeat the purpose and
object of the legislation.
21. In the face of statutory obligations, courts are
empowered and indeed duty-bound to disregard any such
clause that seeks to dilute, defer or defeat the legislative
scheme. To uphold such a clause would be to allow the
promoter to continue holding title in perpetuity under the
guise of incomplete obligations, which the legislature
clearly intended to avoid.
22. Further, the court finds that any interpretation of
the word "period" that allows it to be supplanted by the
occurrence of a future uncertain event would defeat the
legislative intent of providing a time- bound mechanism for
conveyance. MOFA was enacted precisely to remedy the
imbalance in bargaining power between promoters and flat
purchasers. To interpret Rule 9 in a manner that enables
the promoter to defer conveyance indefinitely would
amount to restoring the very imbalance which MOFA seeks
to correct.
23. Therefore, this Court has no hesitation in holding
that the expression "period" as used in Rule 9 must
necessarily mean a fixed, determinable and reasonable
span of time. It cannot be equated with any open-ended or
contingent condition. Any clause in the agreement for sale
that attempts to override or nullify this statutory obligation
must be declared void to that extent, being inconsistent
with the law.
24. In view of the aforesaid discussion, this Court is
of the considered opinion that any contractual clause,
including Clause 25 of the agreement in the present case,
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which seeks to defer the promoter's obligation to execute
conveyance until completion of project, is in direct conflict
with Rule 9 of the MOFA Rules. Such a clause cannot take
precedence over a statutory duty. Where the majority of
purchasers have taken possession and formed a registered
society and have complied with their obligations, the
promoter cannot avoid conveyance by raising inter se
disputes or conditions involving other purchasers. A
condition based on a future uncertain event neither time-
bound nor within the control of the society cannot be
treated as a valid "period" under Rule 9.
25. Acceptance of the petitioner's contentions would
amount to rendering the statutory mandate under MOFA
nugatory and placing the rights of the flat purchasers at the
unregulated discretion of the promoter. Such an
interpretation cannot be sustained in law. It would
frustrate the very purpose for which MOFA was enacted to
ensure time- bound transfer of ownership to flat purchasers
and to check arbitrary and exploitative practices by
promoters. In the present case, no specific and mutually
agreed "period" exists which is contrary to Rule 9.
Accordingly, the petitioner was under a statutory obligation
to execute the conveyance deed within four months from
the date of registration of Respondent 3 Society.
Admittedly, the petitioner failed to do so. Therefore, the
application filed by Respondent 3 under Section 11 of the
MOFA Act was legally maintainable and the order passed
by the competent authority granting deemed conveyance
cannot be faulted.”
44. The next submission of Mr.Kantawala is that, under Section
11(3) of MOFA, deemed conveyance can be granted only when the Developer
has failed or neglected to execute a conveyance. Mr.Kantawala submitted
that, in the present case, the Developer, i.e. the Petitioner, had issued a draft
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conveyance on 6 February 2025 followed by a Reminder on 6 May 2025
evidencing continuous readiness and willingness on the part of the Petitioner
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to execute the conveyance. Mr.Kantawala submitted that the statutory
condition precedent is therefore, not met, thereby rendering the Application
non-maintainable.
45. Again, I am unable to accept this submission of the Petitioner.
The Petitioner forwarded to Respondent No.3, a conveyance that was not
acceptable to Respondent No.3. According to Respondent No.3, the offer of
conveyance of the Petitioner was untenable. In these circumstances, in my
view, it cannot lie in the mouth of the promoter to submit that the statutory
obligation of executing conveyance ends the moment an offer is made,
notwithstanding, that such an offer is inherently untenable. For this reason, I
am unable to accept the submission of Mr.Kantawala that the Petitioner had
not failed to execute a conveyance in favour of the Society. In my view, if a
developer, like the Petitioner, offers to the Society to execute a conveyance,
which is not agreeable to the Society, then obviously the Society would have a
right to file an Application under Section 11(3) of the MOFA.
46. The next submission raised by the Petitioner is that the area
granted by the deemed conveyance is not the correct area and that the matter
should have been referred to the Architect on the panel of the Competent
Authority to decide as to what was the appropriate area.
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47. The impugned Order dated 16 October 2025 has decided to
grant a deemed conveyance on the basis of the area mentioned in the
certificate of Respondent No.3’s Architect and by coming to a finding that
there was no basis for the Petitioner seeking to retain 146 sq.mtrs. of land.
48. It is the case of the Petitioner that the area should have been
according to the plinth and and appurtenant area as per Clause B(2) of the
said G.R. and, further, that 146 sq.mtrs. should have been excluded. The
Petitioner has provided the area, which according to it, is the correct area, by
furnishing its Architect’s certificate. Further, it is the case of the Petitioner
that, in any case, since there is a dispute about the area, an Architect from the
panel of the Competent Authority should have been appointed to determine
the correct area.
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49. The recitals of the Agreement dated 31 July 1999 between the
Petitioner and one of the flat purchasers, produced before Respondent No.2
as a sample agreement, clearly show that the Petitioner had reserved to itself
the right to develop the balance 146 sq.mtrs of land. In this context, recitals 4
to 7 of the said Agreement are relevant and are set out hereunder :
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“ 4. In view of the D. P. Road passing through the said
larger Property, the said larger Property is divided into 2
(two) parts, i.e., Plot "A" and Plot "B".
(a) In the respect of Plot "A" and "B", the Developer had
prepared the layout for putting up various building/
buildings. The Plot "B" was further sub-divided into “B” and
“C”. The said lay-out was approved by Municipal
Corporation of Greater Mumbai vide approval No.
CHE/968/LOP dated 20th April, 1995.
(b) The aforesaid layout has been revised and the said
larger property has been sub divided into four plots and
marked plot A, B, C & D as shown in the plan annexed
hereto as (Annex. "A") The plots A, B, C & D are more
particularly described in the Second, Third, Fourth and
Fifth Schedule hereunder written. The revised layout has
been approved by the Municipal Corporation of Greater
Mumbai vide approval to CHE/968/LOP dated 8th
December, 1997 and hereinafter referred to as the "Said
Lay-out Area".
(c) The Developers have prepared the Plan for construction
of multi-storied Buildings/s on the part of the lay-out area
of Plot "A" more particularly described in the Second
Schedule hereunder written through Architect, Mr. Yunus
Zaveri, consisting of Basement, ground & 7 (Seven) upper
floors, hereinafter referred to as "the said Building"
comprising of flats/shops/car parking spaces and other
premises and known as "VELENTINE APARTMENT (A-2)"
[Shown as Building (A-2) in the layout] and the Building
Plan in respect of the said Building/s is/are approved by
Municipal Corporation of Brihanmumbai under IOD NO.
CHE / 7017 / BP (WS) / AP dated 19th August 1998
( Annexure - "B") and necessary Commencement
Certificate in respect of the said Building is also obtained
vide Commencement Certificate No. CHE/7017 /
BP(WS) /AP dated 3rd February, 1999 (Annex "C"). The
location of the said Building "VELENTINE APARTMENT" on
the part of the lay-out area of the Plot "A" is more
particularly described in the Sixth Schedule hereunder
written and referred to as "the said Property" and
delineated in red colour boundary lines and annexed
hereto as (Annex "A"),
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5. (a) The Developers have informed the Purchaser/s that
the Developers are entitled to construct additional
Buildings in the layout by use of Transferable Development
Right (T.D.R.) as per the prevailing law there under. The
Purchaser/s hereby agree/s and give/s his/her/their
irrevocable consent to the same and the Purchaser/s shall
not raise any objection for carrying out such changes by
the Developers in the Building Plans and/or putting up of
additional building/ buildings on the said lay-out area of
Plot "A" and it is expressly agreed that this is the basis of
this Agreement.
(b) The Developers have informed the Purchaser/s that in
the lay-out area of the Plot "A", the Developers are
constructing 4 (four) or more Buildings by utilising the
F.S.I. of the Plot and/or by use of T.D.R.
6. The Developers will hereafter obtain approval to the
construction of other Building/Buildings in respect of the
remaining portion of the Plot "A" and also Building Plans in
respect of these Buildings which are proposed to be
constructed on the said Plot "A" and, accordingly, on such
Building Plans being approved, the Developers shall
construct the additional Building/Buildings by utilising FSI
of other properties to be obtained by way of T.D.R., and at
present, the Developers shall in their absolute discretion
determine as regards the total floors and total built-up area
in these other Buildings.
7. It is expressly agreed and the Purchaser/s is/are aware
that, as a result of changes in the layout plan and/or the
Building Plans of the said Building or any one or more of
the Buildings, to be hereafter constructed on the said
Property, the share of the said premises in the said
common areas and facilities may decrease. The
Purchaser/s hereby expressly consent/s to such changes in
the said share and hereby irrevocably and expressly
authorise/s the Developers to so decrease the said share of
the said Premises in the said common areas and facilities of
the said Building and/or the said Property and the
Purchaser/s hereby irrevocably agree/s to accept the said
share as changed as aforesaid and shall not raise any plea
in this respect.”
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50. Thus, the recitals of the said Agreement support the case of the
Petitioner in respect of retention of 146 sq.mtrs. of land.
51. Section 11 of the MOFA also clearly provides that the conveyance
to be executed by a promoter would be in accordance with the agreement
executed under Section 4. Further, this Court, in the case of M/s. S & M
Enterprises (Supra) , has also reached a similar conclusion.
52. Further, Clause B(2) of the said G.R. reads as under:
“(2)While making Deemed Conveyance in respect of the
buildings in the layout where T.D.R. is utilized, their
conveyance should be made according to plinth and
appurtenant area.’
53. A perusal of the said Clause B(2) makes it clear that, while
making a deemed conveyance in respect of buildings in the layout where TDR
is utilised, the conveyance should be according to the plinth and appurtenant
area. According to the Petitioner, in the present case, since the TDR was
utlilised, the conveyance should have been according to the plinth and
appurtenant area as shown in the certificate of the Architect of the Petitioner.
54. Further, clause B(3) of the said G.R. reads as under:
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“(3) If there is more than one society in one layout and out
of them only one society has made such application,
similarly other societies are not co-operating for
conducting measurement of the land of the applicant
society then the District Dy. Registrar, Co- operative
Societies, and Competent Authority shall suggest the
applicant society to conduct the measurement according to
the approved plan from the Architect on the panel of the
Competent Authority who approved the construction plans
of the concerned society and submit the report regarding
area of the society."
55. As per clause B(3) of the said G.R., if there is more than one
society in one layout and out of that only one society has made an Application
for granting a deemed conveyance, and the other Societies are not
cooperating for conducting measurements of the land of the Applicant
Society, then Respondent No.2 should suggest to the Applicant Society to
conduct the measurement according to the approved plan from the Architect
on the panel of the Competent Authority who would submit a report
regarding the area of the Society.
56. In the present case, the question before Respondent No.2 was
whether the area, for which deemed conveyance should be granted, should be
as per the built up area, or as per the plinth and appurtenant area, and
whether 146 sq.mtrs. could be retained by the Petitioner. Further, the
present case also falls under Clause B(3) because there are three Societies in
the layout and only Respondent No.3 Society had submitted its
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measurements and all the three Societies have not conducted measurement
of the land. In these circumstances, in my view, Respondent No.2 ought to
have appointed an Architect on the panel of the Competent Authority to find
out the area in respect of which Respondent No.3 would be entitled to a
deemed conveyance. The whole purpose of appointing an Architect is that the
area conveyed to each Society on a particular layout is crystalised and there
are no disputes in the future.
57. However, instead of doing the same, by the impugned Order
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dated 16 October 2025, Respondent No.2 accepted the Certificate of the
Architect of Respondent No.3, and wrongfully held that there was no material
to support the retention of 146 sq.mtrs. of land by the Petitioner, despite the
provisions of the Agreement having been pointed out to him.
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58. In these circumstances, in my view, the Order dated 16 October
2025 will have to be set aside and the matter remanded back to Respondent
No.2 to decide on the granting of a deemed conveyance after appointing an
Architect from the panel of the Competent Authority and after considering
his Report.
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59. This leaves me to deal with the submissions made by Mr.Kanade
on the basis of the judgements of this Court in Akshay Girikunj-3 CHSL
(Supra) and in M/s. ACME Enterprises (Supra) .
60. As far as the Order in Akshay Girikunj-3 CHSL (Supra) is
concerned, Paragraph 3 of the said Order reads as under:
“3 After having considered the submissions canvassed by
the learned Counsel appearing for the parties and after
perusal of the impugned order dated 8 August 2022, it is
seen that the Competent Authority has rejected the
application for unilateral deemed conveyance of the
Petitioner-Society only on the ground that the Developer is
yet to complete construction of Building Nos.4 and 5. Even
if it is assumed that the building of the Society is located
on a layout, there is nothing in law that prevents the
Competent Authority from granting unilateral deemed
conveyance of the building of the Society in a layout. The
only issue is about the exact area of land to be conveyed.
The Competent Authority can either grant land
proportionate to the FSI utilized for construction of
Society's building or the other option available to the
Competent Authority is to convey footprint of the building
and grant proportionate undivided share to the Society in
respect of common amenities. The exact course of action to
be adopted by the Competent Authority would depend on
the facts and circumstances of each case. In my view the
Competent Authority has failed to apply his mind in the
present case and has erroneously rejected the Society's
application. Merely because the construction of Building
Nos.4 and 5 is yet to be completed, the same could not
have been a ground for rejecting the Society's application
for deemed conveyance. In that view of the matter, the
proceedings need to be remanded to the Competent
Authority for being decided afresh. Accordingly, the order
dated 8 August 2022 passed by the Competent Authority is
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set aside. Petitioner-Society's application is restored on the
file of the Competent Authority who shall decide the same
on its own merits without being influenced by any of the
observations made in the order dated 8 August 2022. All
rights and contentions of the parties are left open.”
61. I am not holding that a deemed conveyance cannot be granted to
Respondent No.3 Society. I am only holding that the exact area for such
deemed conveyance to be granted must be determined by appointing an
Architect from the panel of the Competent Authority as per Clause B(3) of the
said G. R.
62. Therefore, the said Order, which holds that merely because two
buildings have completed, the same cannot be a ground for rejecting the
Society’s Application for deemed conveyance, does not carry the case of
Respondent No.3 any further.
63. In M/s. ACME Enterprises (Supra) , this Court has held that an
Order of deemed conveyance would not preclude or prevent the Petitioner
from filing a Suit and claiming appropriate reliefs. The same is set out in
paragraph 27 of the said judgement which reads as under:
“27. It would be contextually relevant to immediately
notice that the import of the aforesaid judgment was
clarified by the Division Bench in the case of Shree
Chintamani Builders (supra). It was observed that an order
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granting deemed conveyance would not conclude issue of
right, title and interest in the immovable property. It was
not as if such an order was passed that the petitioners had
no remedy to question the act of the Society on the
strength of such deemed conveyance. The petitioners could
still bring a substantiate suit on title and point out therein
that as far as CTS No. 2193/2 was concerned the
reservation was shifted. Referring to the aforesaid factual
background, in the case of Shree Chintamani (supra) this
Court observed that the Court cannot examine in writ
jurisdiction and in the garb of examining the legality,
correctness and validity of deemed conveyance, the issues
concerning the right, title or interest in the immovable
property. It was reiterated that the order of deemed
conveyance would not preclude or prevent the petitioner
therein from filing a suit and claiming therein appropriate
reliefs.”
64. On the basis of this Judgment, Mr.Kanade has submitted that
the appropriate remedy for the Petitioner, in respect of 146 sq.mtrs. of land,
would be to file a Suit and not to challenge the Order of deemed conveyance.
65. I am unable to accept this argument of Mr.Kanade. It is a settled
principle that the deemed conveyance should be as per the MOFA Agreement
entered into with the flat purchasers. Further, the same is also laid down in
paragraph 30 of the M/s. ACME Enterprises (Supra) itself which reads as
under:
“30. From the above statutory provisions and enunciation,
the position which emerges can be summarized as under.
The authority to grant deemed conveyance is conditioned
and controlled by the primary obligation of the promoter
to convey to the organization of flat purchasers right, title
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and interest in the land and buildings, in accordance with
the agreement executed under Section 4. Competent
authority cannot convey more than what the promoter had
agreed to convey under the agreement executed under
Section 4. What competent authority is thus required to
consider is, the extent of the obligation incurred by the
promoter, whether the obligation to execute the
conveyance became enforceable and whether the promoter
committed default in, or otherwise disabled himself from,
executing the conveyance.
66. For all the aforesaid reasons, I pass the following order:
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a. The Order dated 16 October 2025 passed by Respondent
No.2 is set aside.
b. Respondent No.3’s Application is restored to the file of the
Competent Authority who shall decide the same after appointing
an Architect from the panel of the Competent Authority and after
considering his or her Report, as provided in Clause B(3) of the
nd
Government Resolution dated 22 June 2018.
c. Rule is made absolute in the aforesaid terms.
d. Writ Petition is disposed of.
e. There shall be no order as to costs.
[FIRDOSH P. POONIWALLA, J.]
67. At this stage, the learned Advocate appearing on behalf of Respondent
No.3 seeks stay of the Order for a period of eight weeks from today. This
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Application is opposed by the learned Advocate appearing on behalf of the
Petitioner.
68. The operation of the Order is stayed for a period of six weeks from
today. Further, in the meanwhile, Respondent No.3 shall not register the deemed
conveyance.
[FIRDOSH P. POONIWALLA, J.]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR
MOHITE
ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2025.12.23
17:33:00 +0530
WRIT PETITION (L) NO. 35377 OF 2025
Velentine Properties Private Limited .. Petitioner
Versus
State of Maharashtra and Ors. .. Respondents
Adv. Vivek Kantawala a/w Adv. Ajit Makhijani and Adv. Rajat Jain i/b
M/s.M. M. Legal Associates, Advocates for the Petitioner.
Mr. Mohit Jadhav a/w Mr. Shamrao Gore, AGP, for Respondent Nos. 1
& 2 -State.
Adv. Vishal Kanade a/w Adv. Tanaya Patankar, Adv. Kartik Tiwari,
Adv. Devang Shah and Adv. Aditya Kanchan i/b Lakshyavedhi Legal,
Advocates for Respondent No.3.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON: DECEMBER 10, 2025
PRONOUNCED ON: DECEMBER 23, 2025
JUDGEMENT:-
1. Rule. Rule made returnable forthwith and heard finally by
consent of parties.
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2. This Writ Petition challenges an Order dated 16 October 2025
passed by Respondent No.2 i.e. the District Deputy Registrar – Co-operative
Society, Mumbai City (4), Competent Authority under Section 5A of the
Maharashtra Ownership Flats (Regulation of the Promotion of Construction,
Sale, Management and Transfer) Act, 1963 (for short “MOFA”), whereby
Respondent No.2 has granted a Unilateral Deemed Conveyance in favour of
Respondent No.3 Society.
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3. Before considering the impugned Order dated 16 October 2025,
and the submissions of the parties in respect thereof, it would be appropriate
to set out the facts in the matter.
4. The Petitioner is the Promoter, Owner and Developer of a
property admeasuring 27,116.30 square meters which, subsequently, in view
of multiple amalgamations and subdivisions, has been divided into sub-plots
marked as Plot A, B, C, D, E, F and G in terms of approved layouts from time
to time.
5. These plots were designated for the construction of multi-storied
buildings as per the sanctioned layout plan. A portion of the said larger land,
admeasuring approx.6,536.30 square meters, and bearing CTS
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Nos.692/A/2/2/A/1, which forms part of a single layout, is identified as the
aforementioned Sub-Plot ‘A’.
6. Sub-Plot ‘A’ comprises of multiple buildings, out of which
Respondent No.3 consists only of Wings A, B, C and F of Building A-2,
constructed on the said land.
7. The Petitioner had executed Sale Agreements with the members
of Respondent No.3, 4 and 5 which agreements contain clear, binding and
specific clauses pertaining to the execution of the conveyance. The Petitioner
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had referred to one such Agreement for Sale dated 31 July 1999, executed
between the Petitioner and one of the members of Respondent No.3, which
was produced by Respondent No.3 before Respondent No.2. The Petitioner
has referred to Clauses 26 and 27 of the said Agreement and stated that a
perusal of the aforesaid clauses demonstrates that the Developer, i.e. the
Petitioner, had expressly reserved its right to determine the extent, mode and
timing of the conveyance or lease, including the option to execute a long-term
lease in lieu of an outright conveyance. Furthermore, the Petitioner stated
that it has also been recorded that the Petitioner shall be entitled at its option
to form a single Organization of all the Premises to be constructed on the said
land i.e. of Respondent Nos.3, 4 and 5 and to execute a conveyance / lease in
respect of the said land in favour of Respondent Nos.3, 4 and 5.
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8. It is the case of the Petitioner that despite the aforesaid clear and
unambiguous terms and conditions, Respondent No.3 prematurely raised a
demand for conveyance without waiting for the completion of the entire
development of the said land. The Petitioner states that, in view of the said
demand, the Petitioner, in good faith, demonstrated its willingness to convey
the conveyable portion of the said land of Respondent Nos.3, 4 and 5 by
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preparing and sharing a joint conveyance deed. By an email dated 6
February 2025, addressed by the Petitioner to Respondent No.3, the
Petitioner forwarded the said draft conveyance to Respondent No.3.
9. Thereafter, the Petitioner issued a reminder to Respondent No.3
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by its email dated 6 May 2025 requesting for a response to the Draft
Conveyance. However, instead of responding to the said communications of
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the Petitioner, Respondent No.3 directly issued a legal notice dated 19 May
2025. In response to the same, the Petitioner once again shared a Draft
rd
Conveyance by its Reply dated 23 May 2025 and reiterated its willingness to
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execute the conveyance. In response to the said reply dated 23 May 2025,
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Respondent No.3 issued a letter dated 30 May 2025. By the said letter
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dated 30 May 2025, Respondent No.3 raised objections with respect to the
retention of an area admeasuring 146 sq.mtrs by the Petitioner out of the
total area admeasuring 6536.30 sq.mtrs. of the said land and Respondent
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No.3 further objected that only 43.21% of the said land was being conveyed to
Respondent No.3.
10. The Petitioner dealt with the aforesaid objections by its letter
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dated 17 June 2025 addressed to Respondent No.3. By the said letter, the
Petitioner stated that, as per the terms and conditions as stipulated in the
agreements executed with all the members of Respondent Nos.3, 4 and 5, the
Petitioner was entitled to develop the retained area, as the same forms part of
the residual area to be developed in accordance with the sanctioned plan,
which is subject to amendments from time to time. Further, the Petitioner
stated that the said land is a part of a unified layout and, hence, the same will
be divided between adjoining Societies and, accordingly, only 43.21% of the
said land can be conveyed to Respondent No.3.
11. The Petitioner states that, despite having any discussions with
the Petitioner, Respondent No.3 filed Application bearing No.148 of 2025,
under Section 11 of MOFA, before Respondent No.2, seeking deemed
conveyance in favour of Respondent No.3 for an area admeasuring 3215.19
sq.mtrs., including 5% open amenity space from the said land. The
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Petitioner filed a reply to the said Application on 13 August 2025 dealing
with the contentions therein.
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12. Subsequently, the Petitioner and Respondent No.3 addressed
their oral arguments before Respondent No.2 and thereafter, liberty was
given to the parties to file their respective written notes of arguments.
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Pursuant thereto, the Petitioner filed written notes of arguments dated 19
September 2025. The Petitioner is not aware if Respondent No.3 has filed
any written arguments since the Petitioner was not served with the same.
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13. Thereafter, the impugned Order dated 16 October 2025 was
passed by Respondent No.3. It is the case of the Petitioner that by the
impugned Order, Respondent No.2 erroneously conveyed 49.19% of the
subject land in favour of Respondent No.3, without due appreciation of the
factual and documentary evidence on record.
14. It is in these circumstances that the Petitioner filed the present
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Petition impugning the Order dated 16 October 2025 passed by Respondent
No.2.
15. Mr.Vivek Kantawala, the learned counsel appearing on behalf of
th
the Petitioner, made submissions impugning the said Order dated 16
October 2025.
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16. Mr.Kantawala first submitted that the Application filed by
Respondent No.3 was premature. In this context, he submitted that Rule 9 of
the Maharashtra Ownership Flats (Regulations of the Promotion of
Construction, Sale, Management and Transfer) Rules, 1964 (“MOFA Rules”)]
mandate execution of conveyance within a period of four months only where
no period is agreed upon between the parties. He submitted that, in the
present case, the parties are governed by a specific and binding contractual
arrangement. Clause 26 of the Agreement for Sale provides that the
Petitioner shall be entitled to form separate co-operative societies and obtain
separate conveyances / leases for one or more structures, and that such
conveyance(s) shall be executed only upon full completion of the entire
development on the said land. The contractual stipulation thus postpones the
obligation to convey title until completion of all buildings and amenities
forming part of the sanctioned layout. Consequently, the Petitioner’s
readiness and willingness to execute the conveyance arises only upon full
development, and not prior thereto. Mr.Kantawala submitted that the
present Application filed before Respondent No.2, in disregard of the express
terms of the said Agreement, and contrary to the contractual time-line
mutually agreed upon, is therefore, premature.
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17. Mr.Kantawala submitted that Respondent No.3’s claim is ex-
nd
facie contrary to the Government of Maharashtra’s Resolution dated 22
June 2018 (“said GR”) which mandates that in multi-building layouts,
conveyance must be restricted only to the proportionate share relatable to
completed buildings and, wherein TDR is used, it should be limited further to
the plinth and appurtenant area.
18. Mr.Kantawala submitted that the Petitioner had complied with
this requirement and offered more than what the said G. R. prescribes. The
Respondent No.3 however, sought 3215.19 sq.mtrs. based on built-up area
calculations, which the said G. R. expressly prohibits.
19. Mr.Kantawala submitted that the larger layout admeasures
6390.30 sq.mtrs., on which three buildings of three different societies stand,
with common areas shared across all. Further, Mr.Kantawala submitted that
the discrepancies in Respondent No.3’s Architect Report warrant
appointment of an independent Architect, as contemplated under the said
G. R. In this context, Mr.Kantawala referred to the judgement of this Court in
Sushil Samir CHSL vs. DDR, Mumbai and Ors. 2014 (4) Mah.L.J. 888 .
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20. Mr.Kantawala further submitted that the Petitioner had always
disclosed phased development under Clauses 21(b), 26 and 27 of the
Agreements for sale and had retained approximately 146 sq.mtrs. for future
developments He submitted that the granting of the Application of
Respondent No.3 by Respondent No.2 leads to categorically conveying this
retained portion, and, therefore, would lead to multiplicity of disputes and
violation of the said G. R.
21. Next, Mr.Kantawala submitted that there was no failure or
neglect under Section 11(3) of MOFA by the Petitioner warranting an
Application for deemed conveyance by Respondent No.3. In this context, he
submitted that Section 11(3) permits deemed conveyance only when the
Developer has failed or neglected to execute it. He submitted that, in the
present case, the Developer, i.e. the Petitioner, issued a draft conveyance on
th th
6 February 2025, followed by a reminder on 6 May 2025, evidencing
continuous readiness and willingness on the part of the Petitioner to execute
the conveyance. He submitted that, in these circumstances, the statutory
condition precedent is therefore, not met, thereby rendering the Application
non-maintainable. Mr.Kantawala further submitted that Respondent No.3
had deliberately suppressed the draft deed of conveyance, reminders and
rd
replies, including the Petitioner’s detailed response dated 23 May 2025
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enclosing the draft once again. Mr.Kantawala submitted that such
concealment constitutes mala fide and amounts to approaching Respondent
No.2 with unclean hands. Mr.Kantawala submitted that, in these
circumstances, Respondent No.3 would not be entitled to any relief from
Respondent No.2.
22. Further, in support of his submissions, Mr.Kantawala relied
upon a judgment of this Court in M/s. S & M Enterprises vs. The Palazzo
Building No. 1 CHSL & Ors. [in Writ Petition No.12297 of 2022] .
Mr.Kantawala submitted that, in this judgement, this Court held that in
phased developments, deemed conveyance is restricted to the proportionate
undivided share corresponding to completed construction. Conveyance of the
entire land prior to completion of the overall project is impermissible as it
prejudices the developer's rights. He submitted that the ratio of this case
squarely applied to the present case.
23. On the other hand, Mr.Vishal Kanade, the learned counsel
appearing on behalf of Respondent No.3, opposed the granting of any relief
in the Petition. Mr.Kanade submitted that the Petitioner’s case, that it was
entitled to retain an area of 146 sq.mtrs., ought to be rejected. In this
context, Mr.Kanade submitted that there was no contractual basis for
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retention of any area. Further, Mr.Kanade submitted that there was
absolutely no pleading by the Petitioner as to why and how the Petitioner is
entitled to an exact area of 146 sq. mtrs. nor is its claim supported by any
cogent document. Without prejudice to the said argument, Mr.Kanade
submitted that, if the basis or challenge to the impugned order is the alleged
right of retention of 146 sq. mtrs., then it is beyond the purview of the
jurisdiction of the Competent Authority. In this context, Mr.Kanade relied
upon the judgement of this Court in M/s. ACME Enterprises v/s Deputy
Registrar Cooperative Societies & Ors., (2023) SCC OnLine BOM 1102 . Mr.
Kanade submitted that, hence, the remedy of the Petitioner was to file a suit
for declaration of rights qua the retained area. Further, Mr.Kanade
submitted that the impugned Order has been passed after considering all the
relevant material on record.
24. Further, Mr. Kanade submitted that none of the grounds urged
by the Petitioner hold any merits. In this context, Mr. Kanade submitted that
the Petitioner shared a draft of a joint-conveyance deed by
withholding/retaining the said area of 146 Sq Mts. There was no explanation
as to why this area was being retained. This was an explicit finding of the
Competent Authority. Mr.Kanade submitted that, in these circumstances, it
cannot lie in the mouth of the promoter to state that the statutory obligation
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of executing conveyance ends the moment an offer is made, notwithstanding,
that such an offer is inherently untenable.
25. Further, Mr.Kanade submitted that the Petitioner was under an
obligation to execute the conveyance of land and building in favour of the
society within four months from the date of registration of Respondent No.3,
th
which was on 17 February 2004. The draft of the joint-conveyance, that too
th
after retaining certain portion, only came on 6 February 2025. Mr.Kanade
submitted that this aspect has also been dealt with by the Competent
Authority.
26. Next, Mr.Kanade relied on the judgement of this Hon'ble Court
in Lok Housing and Construction Limited v/s. State of Maharashtra & Ors.,
2025 SCC Online Bom 711 and submitted that the reliance of the Petitioner
on clauses 26 and 27 of the MOFA Agreement, to contend that the
Respondent No. 3's application for deemed conveyance is premature, is
misplaced.
27. Next, Mr.Kanade submitted that it is not in dispute that the
Architect's Certificate produced by Respondent No. 3 before the Competent
authority is in consonance with the sanctioned/approved plan. Mr.Kanade
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submitted that, on the contrary, the Architect's certificate produced by the
Petitioner is only on basis of calculation of the Appurtenant Area and Plinth
area, without any basis as to why this calculation is applicable to Respondent
No. 3's case.
nd
28. As far as the Government Resolution dated 22 June 2018 is
concerned, Mr.Kanade submitted that Clause B (1) specifically deals with a
situation where there are many societies and construction of some of them is
incomplete. He further submitted that Clause B (2) had to be read with
Clause B (1) and thus, it deals with a situation where circumstances exist as in
clause B1, however, where additional TDR is utilised.
29. Mr.Kanade submitted that a reading of Clause B (1) would show
that conveyance can be made of an undivided share of occupancy right in the
proportion of construction on the proportionate area of the construction of
the Building of such Society or on the basis of ground coverage or or on the
basis of the plinth area alongwith open space, common services and facilities,
etc.
30. Mr.Kanade submitted that this Court in the case of Akshay
Girikunj-3 CHSL v/s. State of Maharashtra, in Writ Petition (L) No. 603 of
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2023 had left it to the wisdom of the Competent authority to grant either land
proportionate to the FSI utilised for construction of the Society's building or
to convey footprint of the building alongwith proportionate undivided share
to the society in respect of common areas, depending on the circumstances of
each case.
31. Further, Mr.Kanade submitted that Clause B (3) deals with a
situation where there are more than one societies and other societies are not
cooperating for conducting measurement of the land of the Applicant Society.
Mr.Kanade submitted that, only in that case, it is contemplated that an
Architect may be appointed for measurement of the land. Mr.Kanade
submitted that, in the present case, although Respondent No. 3 Society has
filed its Application for deemed conveyance, the other Societies, despite
having an intimation of the same, have chosen to not contest the application.
32. As far as the judgment in M/s. S & M Enterprises (Supra) cited
by Mr.Kantawala is concerned, Mr.Kanade submitted that the same is not at
all applicable to the facts of the case since the facts of that case are entirely
different. Mr.Kanade submitted that, in the present case, the construction of
the layout has been completed and the Petitioner has been unable to
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demonstrate from the sanctioned plan as to how and if any area and/or FSI at
all has remained available for further construction.
33. Next, Mr.Kanade referred to the judgement of this Court in
Sushil Samir CHSL (Supra) cited by Mr.Kantawala and stated that the same
nd
is much prior to the Government Resolution dated 22 June 2018 and it does
not consider the position of law that the jurisdiction of the Competent
Authority is extremely limited in the enquiry that it can conduct, and that
while following the summary procedure, it cannot conclusively and finally
decided the question of title.
34. Mr.Kanade submitted that, for all these reasons, the Writ
Petition deserves to be dismissed.
35. In Rejoinder, Mr.Kantawala referred to the judgement in Lok
Housing and Construction Limited (Supra) cited by Mr.Kanade and
submitted that the said decision concerns a situation where FSI has already
been consumed. By contrast, in the present matter, FSI has not been
consumed, and, therefore, the ratio in the said case was factually inapplicable
and does not assist Respondent No.3.
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36. Mr.Kantawala referred to the judgment in the case of Akshay
Girikunj (Supra), cited by Mr.Kanade and submitted that the facts and
regulatory context in that case differ materially from the present case. He
submitted that the said case does not address the specific combination of a
completed building, disclosed conveyance and retained area recorded in the
Deed of Conveyance before the Authority.
37. Lastly, Mr.Kantawala refer to the judgment in M/s. ACME
Enterprises (Supra) and submitted that the same relates to availability of a
civil remedy versus writ jurisdiction. He submitted that Respondent No.3’s
reliance on ACME (supra) therefore mischaracterises the remedy question
and does not detract from the Petitioner’s prima facie entitlement of the
retained area. He submitted that the said judgement makes it clear that the
Competent Authority cannot convey more than what the promoter has agreed
to convey, and must determine the scope of the promotor’s obligation,
whether such obligation has become enforceable and whether any default has
occurred. Mr.Kantawala submitted that this principle squarely supports the
case of the Petitioner. Petitioner’s readiness to execute the conveyance by
th
letter dated 6 February 2025 issued to all three Societies, including
Respondent No.3, was material which the Competent Authority, i.e.
Respondent No.2, failed to consider, thereby rendering its decision contrary
to law and record.
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38. Mr.Kantawala submitted that, in light of the submissions made
by him, the present Petition deserves to be allowed.
ANALYSIS AND FINDINGS
39. I have heard the learned counsel for the parties and perused the
documents on record.
40. The first challenge of the Petitioner in respect of impugned
th
Order dated 16 October 2025 is that the Application filed by Respondent
No.3 before Respondent No.2 was wholly premature and unsustainable. In
this context, Mr.Kantawala submitted that Rule 9 of the MOF Rules,
mandates execution of conveyance within four months only where no period
is agreed upon between the parties. In the present case, the parties were
governed by a specific and binding contractual arrangement. Mr.Kantawala
submitted that Clause 26 of the Agreement for Sale is such an agreement. He
submitted that, in light of the said Clause 26, the question, of the Petitioner
executing the conveyance arises only after full development and not prior
thereto. Mr.Kantawala also submitted that the present Application filed by
Respondent No.3 before Respondent No.2, in disregard of the express terms
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of the said Agreement, and contrary to the contractual time-line mutually
agreed upon, is therefore, premature.
41. Clause 26 of the Agreement reads as under:
“26. In respect of Plot "A" more particularly described
in second Schedule hereunder written, the Developers shall
be entitled at their option to form the single Organisation
of all the Premises to be constructed on the said Property
and to execute cause and/or cause the owners to execute
the Conveyance/lease in respect of the said Property and
the structures thereon in favour of such Organisation/s.
The Developers shall also at their option be entitled to
form different co-operative societies for one or more
structures to be constructed on the Property described in
the Second Schedule hereunder written and to cause the
Owners to execute separate Conveyance/lease in favour of
such Organisation/s, as the case may be. Such
conveyance / lease and / or conveyances/leases shall,
however, be executed only after the entire Property
described in the Second Schedule hereunder written is
fully developed (i.e. all the Buildings as may be permitted
by the Concerned Authorities shall have been fully
constructed on the said Property)”
42. Further, Rule 9 of the MOF Rules, 1964 reads as under:
“Period for conveyance of title of promoter to organisation
of flat purchasers:- If no period for conveying the title of
the promoter to the organisation of the flat purchasers is
agreed upon, the promoter shall (subject to his right to
dispose of the remaining flats, if any) execute the
conveyance within four months from the date on which the
Co-operative society or the company is registered or, as the
case may be, the association of the flat takers is duly
constituted.
"When a promoter has submitted his property to the
provisions of the Maharashtra Apartment Ownership Act,
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1970 by executing and registering a Declaration as
required by section 2 of the Act, and no period for
conveying the title of the promoter in respect of an
apartment to each apartment taker is agreed upon, the
promoter shall execute the conveyance or deed of
apartment in favour of each apartment taker within four
months from the date the apartment taker has entered into
possession of his apartment.
The promoter shall file with the Competent Authority a
copy of the conveyance executed by him under sub-section
(1) of section 11 within a period of two months from the
date of its execution.”
43. Under Rule 9 of the MOF Rules, the promoter is required to
execute the conveyance within four months from the date on which the Co-
operative Society or the Company is registered or, as the case may be, the
Association of Flat takers is duly constituted. It is now well settled law that
Rule 9 of the MOF Rules overrides a clause like Clause 27 of the Agreement
which postpones the executing of a conveyance. This is absolutely clear from
the judgement of this Court in Lok Housing and Construction Limited
(Supra) . Paragraphs 17 to 25 of the said Judgement illuminate this point
and read as under:
“17. The submission advanced on behalf of the
petitioner, seeking to justify delay in execution of
conveyance by relying upon contractual Clauses 25 and 28
to contend that conveyance in favour of society can be
executed only after completion of the entire development
scheme, cannot be accepted in the face of the clear
statutory mandate contained in Rule 9 of the Maharashtra
Ownership Flats (Regulation of the Promotion of
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Construction, Sale, Management and Transfer) Rules, 1964
(hereinafter referred to as "the MOFA Rules"). Rule 9 leaves
no room for ambiguity and categorically prescribes the
time-frame within which a promoter is required to convey
title to the co-operative housing society or association of
flat purchasers. The rule provides that, unless a specific
period is mutually agreed upon between the parties, the
promoter shall execute the conveyance deed within four
months from the date of registration of the society.
18. The purpose of Rule 9 must be understood in
light of the statutory scheme of MOFA, particularly Section
11, which casts a positive obligation upon the promoter to
execute the conveyance of title in favour of the
organisation of flat purchasers. The rule is not merely
procedural in nature but is a substantive safeguard against
indefinite and deliberate delay on the part of the promoter.
The four-month period is a codified timeline intended to
operationalise the legislative objective of ensuring that flat
purchasers are not left in a state of uncertainty regarding
title to the land and building in which their flats are
situated. This obligation cannot be evaded on the basis of
private contractual stipulations that seek to indefinitely
defer the promoter's duty, nor can it be defeated by
reference to alleged defaults by individual purchasers.
MOFA being a social welfare legislation intended to protect
the interests of flat purchasers must be interpreted in a
purposive and beneficial manner. It is settled law that in
interpreting such welfare statutes, the court must give
precedence to the legislative intent over the literal terms of
any private agreement which runs counter to such intent.
19. Of particular significance is the use of the word
"period" in Rule 9 of the MOFA Rules. The legislature has
deliberately chosen this word to signify a determinate,
fixed and measurable segment of time. The ordinary and
grammatical meaning of "period" is a definite span of time,
not subject to vague or indefinite conditions. This
interpretation is consistent with the well-recognised
principles of statutory interpretation, whereby words used
in subordinate legislation are to be given their natural and
popular meaning unless the context requires otherwise.
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20. In the present case, the statutory language is
clear and unambiguous. It therefore warrants a plain and
literal interpretation. The term "period" in Rule 9 cannot be
interpreted to mean an indeterminate, future event-based
time-line such as "completion of the entire development
scheme". Such an interpretation would amount to
substituting a definite and enforceable time-frame with a
contingent and uncertain condition, thereby diluting the
efficacy of Rule 9. Courts are not permitted to rewrite
statutory provisions under the guise of interpretation,
especially when doing so would defeat the purpose and
object of the legislation.
21. In the face of statutory obligations, courts are
empowered and indeed duty-bound to disregard any such
clause that seeks to dilute, defer or defeat the legislative
scheme. To uphold such a clause would be to allow the
promoter to continue holding title in perpetuity under the
guise of incomplete obligations, which the legislature
clearly intended to avoid.
22. Further, the court finds that any interpretation of
the word "period" that allows it to be supplanted by the
occurrence of a future uncertain event would defeat the
legislative intent of providing a time- bound mechanism for
conveyance. MOFA was enacted precisely to remedy the
imbalance in bargaining power between promoters and flat
purchasers. To interpret Rule 9 in a manner that enables
the promoter to defer conveyance indefinitely would
amount to restoring the very imbalance which MOFA seeks
to correct.
23. Therefore, this Court has no hesitation in holding
that the expression "period" as used in Rule 9 must
necessarily mean a fixed, determinable and reasonable
span of time. It cannot be equated with any open-ended or
contingent condition. Any clause in the agreement for sale
that attempts to override or nullify this statutory obligation
must be declared void to that extent, being inconsistent
with the law.
24. In view of the aforesaid discussion, this Court is
of the considered opinion that any contractual clause,
including Clause 25 of the agreement in the present case,
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which seeks to defer the promoter's obligation to execute
conveyance until completion of project, is in direct conflict
with Rule 9 of the MOFA Rules. Such a clause cannot take
precedence over a statutory duty. Where the majority of
purchasers have taken possession and formed a registered
society and have complied with their obligations, the
promoter cannot avoid conveyance by raising inter se
disputes or conditions involving other purchasers. A
condition based on a future uncertain event neither time-
bound nor within the control of the society cannot be
treated as a valid "period" under Rule 9.
25. Acceptance of the petitioner's contentions would
amount to rendering the statutory mandate under MOFA
nugatory and placing the rights of the flat purchasers at the
unregulated discretion of the promoter. Such an
interpretation cannot be sustained in law. It would
frustrate the very purpose for which MOFA was enacted to
ensure time- bound transfer of ownership to flat purchasers
and to check arbitrary and exploitative practices by
promoters. In the present case, no specific and mutually
agreed "period" exists which is contrary to Rule 9.
Accordingly, the petitioner was under a statutory obligation
to execute the conveyance deed within four months from
the date of registration of Respondent 3 Society.
Admittedly, the petitioner failed to do so. Therefore, the
application filed by Respondent 3 under Section 11 of the
MOFA Act was legally maintainable and the order passed
by the competent authority granting deemed conveyance
cannot be faulted.”
44. The next submission of Mr.Kantawala is that, under Section
11(3) of MOFA, deemed conveyance can be granted only when the Developer
has failed or neglected to execute a conveyance. Mr.Kantawala submitted
that, in the present case, the Developer, i.e. the Petitioner, had issued a draft
th th
conveyance on 6 February 2025 followed by a Reminder on 6 May 2025
evidencing continuous readiness and willingness on the part of the Petitioner
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to execute the conveyance. Mr.Kantawala submitted that the statutory
condition precedent is therefore, not met, thereby rendering the Application
non-maintainable.
45. Again, I am unable to accept this submission of the Petitioner.
The Petitioner forwarded to Respondent No.3, a conveyance that was not
acceptable to Respondent No.3. According to Respondent No.3, the offer of
conveyance of the Petitioner was untenable. In these circumstances, in my
view, it cannot lie in the mouth of the promoter to submit that the statutory
obligation of executing conveyance ends the moment an offer is made,
notwithstanding, that such an offer is inherently untenable. For this reason, I
am unable to accept the submission of Mr.Kantawala that the Petitioner had
not failed to execute a conveyance in favour of the Society. In my view, if a
developer, like the Petitioner, offers to the Society to execute a conveyance,
which is not agreeable to the Society, then obviously the Society would have a
right to file an Application under Section 11(3) of the MOFA.
46. The next submission raised by the Petitioner is that the area
granted by the deemed conveyance is not the correct area and that the matter
should have been referred to the Architect on the panel of the Competent
Authority to decide as to what was the appropriate area.
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th
47. The impugned Order dated 16 October 2025 has decided to
grant a deemed conveyance on the basis of the area mentioned in the
certificate of Respondent No.3’s Architect and by coming to a finding that
there was no basis for the Petitioner seeking to retain 146 sq.mtrs. of land.
48. It is the case of the Petitioner that the area should have been
according to the plinth and and appurtenant area as per Clause B(2) of the
said G.R. and, further, that 146 sq.mtrs. should have been excluded. The
Petitioner has provided the area, which according to it, is the correct area, by
furnishing its Architect’s certificate. Further, it is the case of the Petitioner
that, in any case, since there is a dispute about the area, an Architect from the
panel of the Competent Authority should have been appointed to determine
the correct area.
st
49. The recitals of the Agreement dated 31 July 1999 between the
Petitioner and one of the flat purchasers, produced before Respondent No.2
as a sample agreement, clearly show that the Petitioner had reserved to itself
the right to develop the balance 146 sq.mtrs of land. In this context, recitals 4
to 7 of the said Agreement are relevant and are set out hereunder :
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“ 4. In view of the D. P. Road passing through the said
larger Property, the said larger Property is divided into 2
(two) parts, i.e., Plot "A" and Plot "B".
(a) In the respect of Plot "A" and "B", the Developer had
prepared the layout for putting up various building/
buildings. The Plot "B" was further sub-divided into “B” and
“C”. The said lay-out was approved by Municipal
Corporation of Greater Mumbai vide approval No.
CHE/968/LOP dated 20th April, 1995.
(b) The aforesaid layout has been revised and the said
larger property has been sub divided into four plots and
marked plot A, B, C & D as shown in the plan annexed
hereto as (Annex. "A") The plots A, B, C & D are more
particularly described in the Second, Third, Fourth and
Fifth Schedule hereunder written. The revised layout has
been approved by the Municipal Corporation of Greater
Mumbai vide approval to CHE/968/LOP dated 8th
December, 1997 and hereinafter referred to as the "Said
Lay-out Area".
(c) The Developers have prepared the Plan for construction
of multi-storied Buildings/s on the part of the lay-out area
of Plot "A" more particularly described in the Second
Schedule hereunder written through Architect, Mr. Yunus
Zaveri, consisting of Basement, ground & 7 (Seven) upper
floors, hereinafter referred to as "the said Building"
comprising of flats/shops/car parking spaces and other
premises and known as "VELENTINE APARTMENT (A-2)"
[Shown as Building (A-2) in the layout] and the Building
Plan in respect of the said Building/s is/are approved by
Municipal Corporation of Brihanmumbai under IOD NO.
CHE / 7017 / BP (WS) / AP dated 19th August 1998
( Annexure - "B") and necessary Commencement
Certificate in respect of the said Building is also obtained
vide Commencement Certificate No. CHE/7017 /
BP(WS) /AP dated 3rd February, 1999 (Annex "C"). The
location of the said Building "VELENTINE APARTMENT" on
the part of the lay-out area of the Plot "A" is more
particularly described in the Sixth Schedule hereunder
written and referred to as "the said Property" and
delineated in red colour boundary lines and annexed
hereto as (Annex "A"),
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5. (a) The Developers have informed the Purchaser/s that
the Developers are entitled to construct additional
Buildings in the layout by use of Transferable Development
Right (T.D.R.) as per the prevailing law there under. The
Purchaser/s hereby agree/s and give/s his/her/their
irrevocable consent to the same and the Purchaser/s shall
not raise any objection for carrying out such changes by
the Developers in the Building Plans and/or putting up of
additional building/ buildings on the said lay-out area of
Plot "A" and it is expressly agreed that this is the basis of
this Agreement.
(b) The Developers have informed the Purchaser/s that in
the lay-out area of the Plot "A", the Developers are
constructing 4 (four) or more Buildings by utilising the
F.S.I. of the Plot and/or by use of T.D.R.
6. The Developers will hereafter obtain approval to the
construction of other Building/Buildings in respect of the
remaining portion of the Plot "A" and also Building Plans in
respect of these Buildings which are proposed to be
constructed on the said Plot "A" and, accordingly, on such
Building Plans being approved, the Developers shall
construct the additional Building/Buildings by utilising FSI
of other properties to be obtained by way of T.D.R., and at
present, the Developers shall in their absolute discretion
determine as regards the total floors and total built-up area
in these other Buildings.
7. It is expressly agreed and the Purchaser/s is/are aware
that, as a result of changes in the layout plan and/or the
Building Plans of the said Building or any one or more of
the Buildings, to be hereafter constructed on the said
Property, the share of the said premises in the said
common areas and facilities may decrease. The
Purchaser/s hereby expressly consent/s to such changes in
the said share and hereby irrevocably and expressly
authorise/s the Developers to so decrease the said share of
the said Premises in the said common areas and facilities of
the said Building and/or the said Property and the
Purchaser/s hereby irrevocably agree/s to accept the said
share as changed as aforesaid and shall not raise any plea
in this respect.”
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50. Thus, the recitals of the said Agreement support the case of the
Petitioner in respect of retention of 146 sq.mtrs. of land.
51. Section 11 of the MOFA also clearly provides that the conveyance
to be executed by a promoter would be in accordance with the agreement
executed under Section 4. Further, this Court, in the case of M/s. S & M
Enterprises (Supra) , has also reached a similar conclusion.
52. Further, Clause B(2) of the said G.R. reads as under:
“(2)While making Deemed Conveyance in respect of the
buildings in the layout where T.D.R. is utilized, their
conveyance should be made according to plinth and
appurtenant area.’
53. A perusal of the said Clause B(2) makes it clear that, while
making a deemed conveyance in respect of buildings in the layout where TDR
is utilised, the conveyance should be according to the plinth and appurtenant
area. According to the Petitioner, in the present case, since the TDR was
utlilised, the conveyance should have been according to the plinth and
appurtenant area as shown in the certificate of the Architect of the Petitioner.
54. Further, clause B(3) of the said G.R. reads as under:
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“(3) If there is more than one society in one layout and out
of them only one society has made such application,
similarly other societies are not co-operating for
conducting measurement of the land of the applicant
society then the District Dy. Registrar, Co- operative
Societies, and Competent Authority shall suggest the
applicant society to conduct the measurement according to
the approved plan from the Architect on the panel of the
Competent Authority who approved the construction plans
of the concerned society and submit the report regarding
area of the society."
55. As per clause B(3) of the said G.R., if there is more than one
society in one layout and out of that only one society has made an Application
for granting a deemed conveyance, and the other Societies are not
cooperating for conducting measurements of the land of the Applicant
Society, then Respondent No.2 should suggest to the Applicant Society to
conduct the measurement according to the approved plan from the Architect
on the panel of the Competent Authority who would submit a report
regarding the area of the Society.
56. In the present case, the question before Respondent No.2 was
whether the area, for which deemed conveyance should be granted, should be
as per the built up area, or as per the plinth and appurtenant area, and
whether 146 sq.mtrs. could be retained by the Petitioner. Further, the
present case also falls under Clause B(3) because there are three Societies in
the layout and only Respondent No.3 Society had submitted its
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measurements and all the three Societies have not conducted measurement
of the land. In these circumstances, in my view, Respondent No.2 ought to
have appointed an Architect on the panel of the Competent Authority to find
out the area in respect of which Respondent No.3 would be entitled to a
deemed conveyance. The whole purpose of appointing an Architect is that the
area conveyed to each Society on a particular layout is crystalised and there
are no disputes in the future.
57. However, instead of doing the same, by the impugned Order
th
dated 16 October 2025, Respondent No.2 accepted the Certificate of the
Architect of Respondent No.3, and wrongfully held that there was no material
to support the retention of 146 sq.mtrs. of land by the Petitioner, despite the
provisions of the Agreement having been pointed out to him.
th
58. In these circumstances, in my view, the Order dated 16 October
2025 will have to be set aside and the matter remanded back to Respondent
No.2 to decide on the granting of a deemed conveyance after appointing an
Architect from the panel of the Competent Authority and after considering
his Report.
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59. This leaves me to deal with the submissions made by Mr.Kanade
on the basis of the judgements of this Court in Akshay Girikunj-3 CHSL
(Supra) and in M/s. ACME Enterprises (Supra) .
60. As far as the Order in Akshay Girikunj-3 CHSL (Supra) is
concerned, Paragraph 3 of the said Order reads as under:
“3 After having considered the submissions canvassed by
the learned Counsel appearing for the parties and after
perusal of the impugned order dated 8 August 2022, it is
seen that the Competent Authority has rejected the
application for unilateral deemed conveyance of the
Petitioner-Society only on the ground that the Developer is
yet to complete construction of Building Nos.4 and 5. Even
if it is assumed that the building of the Society is located
on a layout, there is nothing in law that prevents the
Competent Authority from granting unilateral deemed
conveyance of the building of the Society in a layout. The
only issue is about the exact area of land to be conveyed.
The Competent Authority can either grant land
proportionate to the FSI utilized for construction of
Society's building or the other option available to the
Competent Authority is to convey footprint of the building
and grant proportionate undivided share to the Society in
respect of common amenities. The exact course of action to
be adopted by the Competent Authority would depend on
the facts and circumstances of each case. In my view the
Competent Authority has failed to apply his mind in the
present case and has erroneously rejected the Society's
application. Merely because the construction of Building
Nos.4 and 5 is yet to be completed, the same could not
have been a ground for rejecting the Society's application
for deemed conveyance. In that view of the matter, the
proceedings need to be remanded to the Competent
Authority for being decided afresh. Accordingly, the order
dated 8 August 2022 passed by the Competent Authority is
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set aside. Petitioner-Society's application is restored on the
file of the Competent Authority who shall decide the same
on its own merits without being influenced by any of the
observations made in the order dated 8 August 2022. All
rights and contentions of the parties are left open.”
61. I am not holding that a deemed conveyance cannot be granted to
Respondent No.3 Society. I am only holding that the exact area for such
deemed conveyance to be granted must be determined by appointing an
Architect from the panel of the Competent Authority as per Clause B(3) of the
said G. R.
62. Therefore, the said Order, which holds that merely because two
buildings have completed, the same cannot be a ground for rejecting the
Society’s Application for deemed conveyance, does not carry the case of
Respondent No.3 any further.
63. In M/s. ACME Enterprises (Supra) , this Court has held that an
Order of deemed conveyance would not preclude or prevent the Petitioner
from filing a Suit and claiming appropriate reliefs. The same is set out in
paragraph 27 of the said judgement which reads as under:
“27. It would be contextually relevant to immediately
notice that the import of the aforesaid judgment was
clarified by the Division Bench in the case of Shree
Chintamani Builders (supra). It was observed that an order
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granting deemed conveyance would not conclude issue of
right, title and interest in the immovable property. It was
not as if such an order was passed that the petitioners had
no remedy to question the act of the Society on the
strength of such deemed conveyance. The petitioners could
still bring a substantiate suit on title and point out therein
that as far as CTS No. 2193/2 was concerned the
reservation was shifted. Referring to the aforesaid factual
background, in the case of Shree Chintamani (supra) this
Court observed that the Court cannot examine in writ
jurisdiction and in the garb of examining the legality,
correctness and validity of deemed conveyance, the issues
concerning the right, title or interest in the immovable
property. It was reiterated that the order of deemed
conveyance would not preclude or prevent the petitioner
therein from filing a suit and claiming therein appropriate
reliefs.”
64. On the basis of this Judgment, Mr.Kanade has submitted that
the appropriate remedy for the Petitioner, in respect of 146 sq.mtrs. of land,
would be to file a Suit and not to challenge the Order of deemed conveyance.
65. I am unable to accept this argument of Mr.Kanade. It is a settled
principle that the deemed conveyance should be as per the MOFA Agreement
entered into with the flat purchasers. Further, the same is also laid down in
paragraph 30 of the M/s. ACME Enterprises (Supra) itself which reads as
under:
“30. From the above statutory provisions and enunciation,
the position which emerges can be summarized as under.
The authority to grant deemed conveyance is conditioned
and controlled by the primary obligation of the promoter
to convey to the organization of flat purchasers right, title
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and interest in the land and buildings, in accordance with
the agreement executed under Section 4. Competent
authority cannot convey more than what the promoter had
agreed to convey under the agreement executed under
Section 4. What competent authority is thus required to
consider is, the extent of the obligation incurred by the
promoter, whether the obligation to execute the
conveyance became enforceable and whether the promoter
committed default in, or otherwise disabled himself from,
executing the conveyance.
66. For all the aforesaid reasons, I pass the following order:
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a. The Order dated 16 October 2025 passed by Respondent
No.2 is set aside.
b. Respondent No.3’s Application is restored to the file of the
Competent Authority who shall decide the same after appointing
an Architect from the panel of the Competent Authority and after
considering his or her Report, as provided in Clause B(3) of the
nd
Government Resolution dated 22 June 2018.
c. Rule is made absolute in the aforesaid terms.
d. Writ Petition is disposed of.
e. There shall be no order as to costs.
[FIRDOSH P. POONIWALLA, J.]
67. At this stage, the learned Advocate appearing on behalf of Respondent
No.3 seeks stay of the Order for a period of eight weeks from today. This
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Application is opposed by the learned Advocate appearing on behalf of the
Petitioner.
68. The operation of the Order is stayed for a period of six weeks from
today. Further, in the meanwhile, Respondent No.3 shall not register the deemed
conveyance.
[FIRDOSH P. POONIWALLA, J.]
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