Girnr (Santacruz) Cooperative Housing Society Limited vs District Deputy Registrar Cooperative Societies Mumbai City 93) And 3 Others
- Court
- Bombay High Court
CNR No : HCBM020115312017
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1435 OF 2017
Girnar (Santacruz) Co-operative }
Housing Society Limited }
having its address at Plot Nos. 61B, 61C and 63A, }
Chappell Lane, Santacruz (West), Mumbai – 400 054. } … Petitioner
V/s.
1. District Deputy Registrar, }
Co-operative Societies Mumbai City (3), }
Office of the Competent Authority, }
having his address at Room No. 69-A, }
Ground Floor, MHADA Building, }
Bandra (East), Mumbai – 400 051. }
2. Radheshyam Constructions, }
a partnership firm, }
having its address at 19/21, Hamam Street, }
Fort, Mumbai – 400 001 and also at 556, Brindavan, }
th
16 Road, Khar (West), Mumbai – 400 052. }
3. Hanifa Turab Aarsiwala }
having her address at 79, Raudat Tahera Street, }
th
5 Floor, Bhendi Bazar, Mumbai – 400 003. }
4. Ruksana Yusuf Harianawala, }
having her address at 79, Raudat Tahera Street, }
th
5 Floor, Bhendi Bazar, Mumbai – 400 003 } ... Respondents
___________________________________________________________________
Dr. Sanjay Jain a/w Mr. Nishant Sasidharan, Mr. Kalpesh Mehta, Ms. Sandhya Jain and
Mr. Vasim Shaikh i/b M/s. Pravin Mehta & Mithi & Company for Petitioner.
Mr. S. B. Gore, AGP for Respondent no. 1 – State
Digitally signed
by SHUBHAM
SHESHRAO
GADHAVEPATIL
Date:
2026.07.30
20:06:27 +0530
Page 1 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
SHUBHAM
SHESHRAO
GADHAVEPATIL
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
Mr. Vivek Kantawala a/w Mr. Vivek M. Sharma i/b M/s. Vivek Kantawala & Company
for Respondent nos. 3 and 4.
______________________________________________________________________
CORAM : FARHAN P. DUBASH, J.
th
RESERVED ON : 30 APRIL 2026
th
PRONOUNCED ON : 30 JULY 2026
______________________________________________________________________
JUDGMENT:
1. By the present Writ Petition under Article 226 of the Constitution of India, the
st
Petitioner, a co-operative housing society, challenges the order dated 31
January 2017 (“the impugned order”) passed by the Competent Authority /
District Deputy Registrar, Co-operative Societies, Mumbai City, under Section
11 of the Maharashtra Ownership of Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”), whereby
the Petitioner’s application for unilateral deemed conveyance came to be partly
allowed and a certificate of partial unilateral deemed conveyance was granted.
RELEVANT FACTS
2. The facts, to the extent relevant for deciding the present Petition, are briefly set
out below:
a. One Mohsinbhai Hasanali (“the deceased”) was the owner of lands
bearing Survey No. 61B corresponding to CTS No. H-394, Survey No.
61C corresponding to CTS No. H-386, Survey No. 63A, Hissa No. 1
corresponding to CTS Nos. H-393, H-404 and H-405, and Survey No.
63A, Hissa No. 2 corresponding to CTS No. H-403, admeasuring in the
Page 2 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
aggregate approximately 2,409.8 square metres (“the said Land”).
th
b. By an Agreement dated 16 September 1970 (“the Agreement”), the
deceased agreed to sell and transfer the said Land together with the
structures standing thereon in favour of M/s. Radheshyam
Constructions / Respondent No. 2 (“the Developer”). At the material
time, the property comprised, inter alia, a chawl occupied by monthly
tenants and an incomplete structure.
c. On the same day, the deceased and the Developer executed a
Supplementary Agreement (“the Supplementary Agreement”) recording
the consideration payable in respect of the incomplete structure, the
parties noting that the same had inadvertently not been incorporated in
the Agreement.
th
d. Thereafter, on 5 December 1970, the Developer entered into Articles
of Agreement for Sale (“the AFS”) with the Chief Promoter of the
proposed Petitioner Society, whereby the Developer agreed to construct
a building on the said Land and subsequently convey the land together
with the building in favour of the proposed society.
e. In or about the year 1971, the Developer constructed a building
consisting of a ground floor and five upper floors comprising 37 flats
and two garages. The said Land together with the residential building
and the existing chawl are hereinafter collectively referred to as “the
said Property”. It is the Petitioner’s case that its members have been in
occupation of the building since its construction.
nd
f. The Petitioner Society came to be registered on 2 January 1971 under
the provisions of the Maharashtra Co-operative Societies Act, 1960.
Page 3 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
Admittedly, no conveyance of the said Property was thereafter executed
in favour of the Petitioner.
g. Consequently, the Petitioner instituted Application No.75 of 2016 under
Section 11(3) of MOFA before the Competent Authority appointed
under Section 5A of MOFA, seeking a certificate of unilateral deemed
conveyance in respect of the said Property.
st
h. By the impugned order dated 31 January 2017, the Competent
Authority partly allowed the application and granted a certificate of
unilateral deemed conveyance in respect of lands bearing CTS Nos. H-
394, H-403 and H-404, admeasuring approximately 1,383.8 square
metres. The Competent Authority, however, declined to grant deemed
conveyance in respect of the remaining portion of the property,
including the chawl known as “Jalal House” standing on CTS No. H-
405 admeasuring approximately 388 square metres (“the Balance
Portion”). Insofar as CTS Nos. H-393 and H-386, admeasuring
approximately 352 square metres and 286 square metres respectively,
are concerned, the Competent Authority granted only a joint right of
way in favour of the Petitioner instead of directing conveyance thereof
(“the Access Portion”).
i. Aggrieved by the exclusion of the Balance Portion and the Access
Portion from the certificate of deemed conveyance, the Petitioner has
preferred the present Writ Petition.
j. During the pendency of the present Writ Petition, and pursuant to the
certificate issued under the impugned order, a Deed of Unilateral
th
(Deemed) Conveyance dated 6 February 2025 came to be executed
and registered in favour of the Petitioner in respect of the portion
Page 4 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
covered by the certificate.
SUBMISSIONS OF THE PETITIONER
3. Dr. Sanjay Jain, learned Counsel appearing on behalf of the Petitioner, submits
that the project in question is governed by the provisions of MOFA. According
to him, Respondent No. 2 / Developer derived rights in the entire property,
comprising the land together with the structures standing thereon, including the
th
chawl, under the Agreement dated 16 September 1970 read with the
Supplementary Agreement executed on the same day. Thereafter, by the AFS
th
dated 5 December 1970 executed with the Chief Promoter of the proposed
Petitioner Society, Respondent No. 2 expressly agreed to construct the building
and convey the entire property in favour of the Society.
4. Inviting attention to the Agreement and the Supplementary Agreement, Dr. Jain
submits that the deceased owner agreed to transfer the entire property to
Respondent No. 2 or its nominee. According to him, the Supplementary
Agreement merely supplemented the principal Agreement by incorporating the
consideration payable in respect of the incomplete structure, which had
inadvertently not been included therein, and did not in any manner curtail or
modify the subject matter of the original transaction. He submits that, when
read together, the two agreements unequivocally demonstrate that the parties
intended to transfer the entire property, including the chawl.
5. Dr. Jain thereafter relies upon the provisions of the AFS to submit that
Respondent No. 2 agreed to construct a residential building together with
garages on the said land in accordance with the sanctioned plans and to sell the
flats together with the land to the members of the proposed Society as part of a
Page 5 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
composite transaction. According to him, the AFS clearly envisages execution
of a conveyance in favour of the Society in respect of the entire property and
not merely the portion occupied by the newly constructed building.
6. It is further submitted that the Agreement, the Supplementary Agreement and
the AFS constitute a continuous chain of transactions, all of which deal with the
same property. Dr. Jain contends that none of these documents reserve or
exclude either the existing chawl standing on CTS No. H-405, the land beneath
it, or the portions bearing CTS Nos. H-393 and H-386. On the contrary, the
recitals and operative provisions of the AFS expressly recognise the existence
of the chawl and its tenants, contemplate attornment of such tenants in favour of
the Society upon completion of the transaction, and provide that the Society
would thereafter become entitled to receive the rents payable by them.
According to him, had it been intended to exclude the chawl or any part of the
land from the proposed conveyance, the AFS would not have incorporated such
provisions.
7. Placing reliance upon Section 11 of MOFA and the decisions rendered
thereunder, Dr. Jain submits that the promoter is under a statutory obligation to
convey its right, title and interest in the land and building to the co-operative
society of flat purchasers. Where the promoter fails to discharge such
obligation, the Competent Authority is empowered to issue a certificate of
unilateral deemed conveyance. He submits that the extent of the deemed
conveyance must ordinarily correspond to the property agreed to be conveyed
under the agreement contemplated by Section 4 of MOFA. In the present case,
according to him, the AFS constitutes the agreement referable to Section 4 and,
therefore, the Competent Authority was bound to give effect to the contractual
obligation undertaken therein.
Page 6 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
8. Proceeding on this basis, Dr. Jain submits that the Petitioner was entitled to a
certificate of unilateral deemed conveyance in respect of the entire property
admeasuring approximately 2,409.8 square metres, including the chawl
standing on CTS No. H-405 as well as the lands bearing CTS Nos. H-393 and
H-386. He therefore contends that the Competent Authority committed a
manifest error in restricting the deemed conveyance to only a part of the
property and in confining the Petitioner's rights over CTS Nos. H-393 and H-
386 to a mere joint right of way.
9. Dr. Jain submits that the Competent Authority committed a manifest error in
excluding the Balance Portion, comprising the land bearing CTS No. H-405
together with the chawl standing thereon, from the certificate of unilateral
deemed conveyance. According to him, the reasons assigned in the impugned
order, namely, that Respondent Nos. 3 and 4 continued to collect rent from the
chawl tenants, instituted tenancy proceedings and exercised rights of
management over the chawl, do not constitute legally sustainable grounds for
refusing conveyance. He submits that once the governing agreements
contemplated transfer of the entire property, such subsequent acts could not
dilute the contractual or statutory obligations arising under MOFA. It is further
submitted that the sanctioned plans and other development documents also
demonstrate that the development was conceived with reference to the entire
property and that the Agreement as well as the AFS expressly contemplated
attornment of the chawl tenants upon completion of the transaction.
10. Insofar as the Access Portion is concerned, Dr. Jain submits that the Competent
Authority erred in restricting the Petitioner’s rights to a mere joint right of way
over CTS Nos. H-393 and H-386. According to him, neither the Agreement nor
Page 7 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
the AFS contemplates reservation of ownership in respect of those lands. On the
contrary, the contractual arrangement envisaged conveyance of the land itself.
He submits that where the agreement executed under Section 4 of MOFA
includes roads, passages or access areas within the property agreed to be
conveyed, the promoter cannot retain ownership thereof while conferring only
easementary rights upon the Society.
11. Dr. Jain further submits that although proceedings under Section 11 of MOFA
do not finally adjudicate questions of title and do not preclude the parties from
establishing their respective rights before a competent Civil Court, that
principle cannot justify refusal to give effect to the contractual obligations
undertaken by the promoter. According to him, the Competent Authority has
failed to correctly identify the property agreed to be conveyed under the
Agreement and the AFS and has consequently declined relief in respect of
portions which form part of the very subject matter of those documents. He
therefore submits that the present Petition is maintainable in exercise of this
Court’s supervisory jurisdiction under Articles 226 of the Constitution of India.
12. In support of these submissions, Dr. Jain places reliance upon the decision of
the Supreme Court in Arunkumar H. Shah HUF v. Avon Arcade Premises Co-
1
operative Society Ltd. and the decision of this Court in Haresh Vijay Singh
2
Bhatia & Ors. v. District Deputy Registrar & Ors. . He submits that these
decisions recognise the supervisory jurisdiction of this Court to interfere where
the Competent Authority, while exercising powers under Section 11 of MOFA,
has failed to give effect to the promoter’s statutory obligation to convey the
property agreed to be transferred. According to him, the impugned order, in
1
(2025) 7 SCC 249
2
2025 SCC OnLine Bom 1981
Page 8 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
refusing deemed conveyance in respect of the Balance Portion and in limiting
the Petitioner’s rights over the Access Portion to a joint right of way, frustrates
the beneficial object underlying MOFA.
13. Dr. Jain also submits that the residential building was completed in or about the
nd
year 1971 and that the Petitioner Society came to be registered on 2 January
1971. Despite the lapse of more than five decades, no complete conveyance has
been executed in favour of the Society. According to him, the absence of such
conveyance has seriously prejudiced the members of the Society, particularly in
undertaking redevelopment of the property, the existing building having
substantially deteriorated with the passage of time.
14. Summing up his submissions, Dr. Jain contends that the continued collection of
rent from the chawl tenants or the management of tenancy proceedings by
Respondent Nos. 3 and 4 cannot override either the contractual stipulations
contained in the governing Agreements or the statutory obligation cast upon the
promoter under MOFA. He accordingly submits that the impugned order
deserves to be modified by directing issuance of a certificate of unilateral
deemed conveyance in respect of the Balance Portion and the Access Portion
also, together with all consequential directions necessary for execution and
registration of the conveyance.
15. Dr. Jain next submits that the jurisdiction of the Competent Authority under
Section 11 of MOFA is confined to enforcing the promoter’s statutory
obligation to convey its right, title and interest in the property in accordance
with the agreement executed under Section 4 of MOFA. While exercising such
jurisdiction, the Competent Authority is required to ascertain the property
agreed to be conveyed and give effect to the contractual obligations undertaken
Page 9 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
by the promoter. It cannot, however, adjudicate disputed questions relating to
title, ownership or the validity of the underlying documents, which are required
to be decided by a competent Civil Court. In support of this proposition,
reliance is placed upon the decisions of this Court in Dhuri Co-operative
3
Housing Society Ltd. v. State of Maharashtra & Ors. , New Sonal Industries
Premises Limited v. District Deputy Registrar (2) Co-operative Societies &
4 5
Ors. , Blue Heaven CHSL v. Punit Construction Co. Pvt. Ltd. and M/s. K.G.
Associates & Anr. v. District Deputy Registrar, Co-operative Societies, Pune
6
City .
16. Dr. Jain further submits that while considering an application under Section
11(3) of MOFA, the Competent Authority is not confined to the agreement
executed with the flat purchasers alone but is also required to consider other
contemporaneous documents governing the transaction. In this regard, reliance
is placed upon the decisions of this Court in Mazda Construction Company &
7
Ors. v. Sultanabad Darshan CHS Ltd. & Ors. and Shree Siddharth
Construction Builders & Developers Mumbai v Shree Saraswati Apartment Co-
8
operative Housing Society Ltd. &Ors. to contend that the Agreement, the
Supplementary Agreement and the AFS were all relevant documents which
ought to have been read together while determining the extent of the property
liable to be conveyed.
17. It is further submitted that the continued occupation of the chawl by tenants
could not, by itself, furnish a valid ground for excluding the chawl from the
3
2025 SCC OnLine Bom 1877
4
2025 SCC OnLine Bom 391
5
2024 SCC OnLine Bom 3618
6
2023 SCC OnLine Bom 2132
7
2012 SCC OnLine Bom 1266
8
2014 (1) Mh.L.J 784
Page 10 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
deemed conveyance. Placing reliance upon the decisions in Gani Mia & Ors. v.
9 10
Wajid Ali , Md. Mehmood & Ors. v. Nargis Begum & Ors. , Ratanlal
11
Ghalabhai (Org. Plaintiff) v. Amarsing Rupsang & Anr. and Sadashiv Shyama
12
Sawant (Dead) Through LRS. & Ors v. Anita Anant Sawant , Dr. Jain submits
that where premises are in the occupation of tenants, delivery of possession
may be constructive and need not necessarily be by actual physical delivery.
According to him, upon attornment, the landlord’s interest and juridical
possession stand transferred notwithstanding the continued occupation of the
tenants. He therefore submits that the existence of the chawl tenancy could not
have constituted a legitimate basis for excluding the Balance Portion from the
certificate of unilateral deemed conveyance.
18. Dr. Jain accordingly submits that the impugned order proceeds on an erroneous
understanding of the scope of Section 11 of MOFA and the contractual
documents governing the transaction. According to him, once the Agreement,
the Supplementary Agreement and the AFS are read together, the only
conclusion possible is that the promoter had undertaken to convey the entire
property in favour of the Petitioner Society. The Competent Authority,
therefore, ought to have directed issuance of a certificate of unilateral deemed
conveyance in respect of the entire property, including the Balance Portion and
the Access Portion.
19. Dr. Jain finally submits that since proceedings under Section 11 of MOFA do
not result in a final adjudication of title, no prejudice would be caused to
Respondent Nos. 3 and 4 if the certificate of deemed conveyance is granted in
9
1935 SCC OnLine Cal 14
10
2015 SCC OnLine Cal 2096
11
ILR 1929 (53) Bombay 773
12
(2010) 3 SCC 385
Page 11 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
favour of the Petitioner. According to him, all rival claims relating to
ownership, title or other proprietary rights would remain open to be agitated
before the competent civil forum.
20. On these submissions, Dr. Jain prays that the impugned order be modified by
directing Respondent No.1 to issue a certificate of unilateral deemed
conveyance in favour of the Petitioner in respect of the Balance Portion as well
as the Access Portion, together with such consequential directions as may be
necessary for execution and registration of the conveyance.
SUBMISSIONS OF RESPONDENT NOS. 3 & 4
21. Mr. Vivek Kantawala, learned Counsel appearing on behalf of Respondent Nos.
3 and 4, the heirs and legal representatives of the deceased owner, supports the
impugned order and submits that it warrants no interference in exercise of the
writ jurisdiction of this Court. According to him, the controversy in the present
Petition is confined to the Petitioner’s claim for unilateral deemed conveyance
in respect of CTS Nos. H-405, H-393 and H-386, the conveyance in respect of
the remaining portion of the property having already been executed and
registered pursuant to the impugned order.
22. Mr. Kantawala submits, at the outset, that Respondent Nos. 3 and 4 cannot be
regarded as “promoters” within the meaning of Section 2(c) of MOFA. He
submits that they neither constructed nor caused the Petitioner’s building to be
constructed, entered into any agreement with the flat purchasers under Section 4
of MOFA, nor received any consideration from the members of the Petitioner
Society. Consequently, according to him, no statutory obligation under Section
11 of MOFA can be enforced against them.
Page 12 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
th
23. Referring to the Agreement dated 16 September 1970, Mr. Kantawala submits
that the document merely contemplated a proposed sale in favour of
Respondent No. 2, subject to fulfilment of several conditions precedent,
including payment of the balance consideration together with interest,
ascertainment of the final area and completion of the transaction. According to
him, those conditions were never fulfilled and the contemplated sale was never
completed. He submits that the Agreement also contemplated attornment of the
chawl tenants only upon completion of the sale and did not, by itself, effect any
transfer of the landlord’s interest in the chawl.
24. Developing this submission further, Mr. Kantawala contends that Respondent
No. 2 neither acquired possession of the chawl nor succeeded to the rights of
the landlord. According to him, no attornment ever took place and Respondent
Nos. 3 and 4 have throughout continued to collect rent from the chawl tenants,
pay municipal and other outgoings, and prosecute tenancy proceedings in
respect of the chawl. The Petitioner or Respondent No. 2, on the other hand,
never exercised any incident of ownership or landlordship in relation thereto. In
these circumstances, he submits that Respondent No. 2 could not have
conveyed to the Petitioner any right in the chawl or the land appurtenant
thereto.
25. Mr. Kantawala further submits that the Petitioner’s application under Section
11(3) of MOFA was itself deficient inasmuch as, it was not accompanied by
several documents ordinarily required for consideration of such an application,
including the agreements executed with the individual flat purchasers, the
occupancy certificate, the architect’s certificate, approved plans and documents
evidencing possession. He also submits that neither the Agreement, the
Page 13 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
Supplementary Agreement nor the AFS expressly states that it constitutes an
agreement under Section 4 of MOFA.
26. It is submitted that while exercising jurisdiction under Section 11 of MOFA, the
Competent Authority is required to examine the material produced by the
applicant and determine whether the applicant has established its entitlement to
the property sought to be conveyed. According to Mr. Kantawala, where the
documents do not establish such entitlement, the Competent Authority cannot
be compelled to grant unilateral deemed conveyance merely because the
disputed land originally formed part of a larger parcel. He therefore submits that
the Competent Authority rightly confined the deemed conveyance to those
portions in respect of which the Petitioner’s entitlement stood established.
27. Insofar as CTS Nos. H-393 and H-386 are concerned, Mr. Kantawala submits
that those lands constitute a common access serving both the Petitioner’s
building and the existing chawl. He therefore contends that the Competent
Authority rightly granted only a joint right of way instead of directing
conveyance of the said lands exclusively in favour of the Petitioner.
28. Mr. Kantawala further submits that the Petitioner’s claim to ownership of the
chawl necessarily involves adjudication of disputed questions relating to title.
According to him, the Petitioner’s case proceeds on the assumption that the sale
contemplated under the Agreement stood completed and that the landlord’s
interest in the chawl stood transferred notwithstanding the admitted absence of
attornment and continued exercise of ownership rights by Respondent Nos. 3
and 4. These, according to him, are matters requiring adjudication in properly
constituted civil proceedings and fall outside the limited jurisdiction of the
Competent Authority under Section 11 of MOFA.
Page 14 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
29. It is therefore submitted that the Competent Authority correctly distinguished
between the land upon which the Petitioner’s building stands and the portion
occupied by the existing chawl and, having regard to the material placed before
it, rightly declined to grant unilateral deemed conveyance in respect of the latter
while confining the Petitioner’s rights over the Access Portion to a joint right of
way.
30. On these submissions, Mr. Kantawala submits that the impugned order
discloses no jurisdictional error or perversity warranting interference and that
the present Writ Petition is liable to be dismissed.
ANALYSIS, REASONS & FINDINGS
31. I have heard Dr. Sanjay Jain, learned Counsel appearing on behalf of the
Petitioner, and Mr. Vivek Kantawala, learned Counsel appearing on behalf of
Respondent Nos. 3 and 4. I have also perused the pleadings, the documents
forming part of the record and the impugned order.
32. The principal issue which arises for consideration is whether the Competent
Authority, while exercising jurisdiction under Section 11 of MOFA was
justified in excluding from the certificate of unilateral deemed conveyance; the
Balance Portion being land bearing CTS No. H-405 together with the chawl
standing thereon and the Access Portion being lands bearing CTS Nos. H-393
and H-386, in respect of which only a joint right of way has been granted. The
determination of this issue necessarily turns upon the true construction of the
Agreement, the Supplementary Agreement and the AFS; and the scope and
ambit of the enquiry contemplated by Section 11 of MOFA while considering
Page 15 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
an application for unilateral deemed conveyance.
33. A perusal of the impugned order indicates that the Competent Authority granted
unilateral deemed conveyance in respect of only a part of the property described
in the Petitioner’s application. Insofar as the Balance Portion, comprising the
land bearing CTS No. H-405 together with the chawl standing thereon, is
concerned, the Competent Authority declined to grant deemed conveyance
principally on the ground that the contemplated sale in favour of Respondent
No. 2 had not been completed. The Competent Authority observed that the
balance consideration under the Agreement remained unpaid, the chawl tenants
were never attorned in favour of Respondent No. 2 and, consequently,
Respondent Nos. 3 and 4 continued to exercise the rights of landlords in respect
of the chawl. Insofar as the lands bearing CTS Nos. H-393 and H-386 are
concerned, the Competent Authority took the view that those lands constituted a
common access to both the Petitioner’s building and the existing chawl.
Proceeding on that basis, it granted the Petitioner only a joint right of way over
the said lands instead of directing conveyance thereof.
34. The correctness of the aforesaid conclusions falls for consideration in the
present Writ Petition. The controversy, therefore, is not whether the Petitioner is
entitled to a certificate of unilateral deemed conveyance, that entitlement
having already been recognised by the Competent Authority. The controversy is
confined to the extent of the property in respect of which such certificate ought
to have been issued. More particularly, the question is whether the Competent
Authority, while exercising powers under Section 11 of MOFA, was justified in
excluding the Balance Portion from the deemed conveyance and in restricting
the Petitioner’s rights over the Access Portion to a mere right of way.
Page 16 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
35. The rival submissions principally turn upon the true construction of the
Agreement, the Supplementary Agreement and the AFS. It is, therefore,
necessary to examine these documents to ascertain the extent of the property
which the parties intended to be conveyed. Only those clauses which bear upon
the present controversy require consideration and are reproduced hereunder:
The Agreement
“1. The Vendor shall sell and the Purchaser shall purchase free
from all encumbrances all those pieces or parcels of land, or ground,
messuages, tenements and dwelling houses standing thereon situate
lying and being at Santa Cruz, Greater Bombay and more particularly
described in the Schedule hereunder written at the price and on the
terms and conditions herein contained.”
… …
“12. On payment of the balance of the purchase price the Vendor
and all other necessary parties shall execute the Conveyance in favor
of the Purchaser or any person or persons as the Purchaser may
nominate or such person or persons as the Purchaser may direct”
… …
“14. On completion of the sale, the Vendor will give to the
Purchasers vacant possession of the entire property together with the
incomplete structure thereon mentioned above save except the
ground floor chawl which is standing on the said property and which is
occupied by the tenants of the Vendor. As regards the said ground
floor chawl, possession thereof will be given to the Purchaser by
attorning the tenants of the said chawl in favour of the Purchaser. The
Purchaser will be at liberty after completion of the sale of the property
to deal with the tenants and occupants of the said chawl in such
manner as they may deem fit. The Vendor declares that all the tenants
of the chawl are monthly tenants and that there is no rent forming
contract in respect thereof.”
The AFS
1. The Vendors have agreed to sell and the Purchaser has agreed
to purchase the said land with the dwelling houses situate at Santa
Cruz, Danda, Bombay Suburban District and in the Registration Sub-
District of Bandra and more particularly described in the First Schedule
hereunder written together with the building, garages duly constructed
thereon as hereinafter provided free from all incumbrances. However,
the Vendors and the Purchaser hereby mutually agree that they the
Vendors and the Purchaser will submit to the Bombay Municipal
Corporation amended plan/s in respect of the ground floor of the
Page 17 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
building to be constructed by the Vendors; and accordingly the total
number of flats in the building may increase, if such plan/s is/are
approved by the Bombay Municipal Corporation.”
… …
“5. At the time of the execution of the Conveyance in favour of the
Purchaser and/or the said proposed Society from the original Vendor,
the Purchaser and/or the proposed Society shall pay to the original
th
Vendor the sum of Rs. 4,40,000/- as per the said Agreement dated 16
September, 1970. That if the Purchaser needs any amount as loan for
completion of the sale of the said land in favour of the purchaser
and/or the proposed Society from the original vendor the Vendors shall
lend and advance a loan or loans upto the maximum amount of Rs. 2
lacs with interest and the Purchaser and/or the proposed Society shall
repay to the Vendors such loan or loans as soon as the members of the
proposed Society make contributions and/or as soon as the funds are
available with the Purchaser and/or the said proposed Society.”
… …
“11. Upon payment by the Purchaser and/or the proposed Society to
the Vendors of the entire consideration as provided in Cl.2 above the
Vendors shall put the Purchaser and/or the proposed Society in
possession of the said building duly completed thereon as aforesaid as
provided in Cl.1 hereinabove. Provided However, that after execution
of the Conveyance in favour of the Purchaser and/or the said proposed
Society the Vendors shall be entitled to enter upon the said land for
the purpose of construction of the said building as herein provided.
12. The Vendors have already informed to the Purchaser which the
Purchaser hereby acknowledges that there is a ground floor chawl
which is standing on the said land and occupied by the tenants of the
original Vendors. The Vendors have informed the Purchaser and the
purchaser hereby acknowledges that the possession of the said ground
floor chawl shall be given to the Purchaser by attorning the tenants of
the said ground floor chawl in favour of the Purchaser and the
Purchaser shall be entitled to receive the rent from the said tenants of
the said ground floor chawl.”
… …
“THE FIRST SCHEDULE HEREINABOVE REFERRED TO :
All those pieces or parcels of land or ground with the messuages
tenements or dwelling houses standing thereon situate lying and being
at Santa Cruz, Danda, Bombay, Suburban District and in the
registration Sub-district of Bandra and registered in the Books of the
Collector of Land Revenue Bombay Suburban under Survey number
etc. as follows:-
Page 18 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
Rev. S. Hissa CTS Old S. Plot No. Area in
No. No. No. No. Gun. As
per
record
Actual
area in
sq. yds.
As per
the Dis-
trict Sur-
vey &
Land
Records
Office,
Bombay
Assess-
ment
61B - H-394 61 5 Pt. 3 Gun.
(363 sq.
yds.)
475-0 0-12-9
61C - H-386 61 3 Pt. 1 ¼ Gun.
(212 sq.
yds.)
360-5 ½ 91-12-np
3/3
11
63A 1 H-393
H-405
H-404
63
63
63
13
14
15
1479-8 ½ -
Gun.
(1422 sq.
yds.)
63A 2 H-403 63 16 Pt. 4 ½ Gun.
(514 sq.
yds.)
652-4 1-4-0
and bearing Municipal H. Ward No. 3896(2) and Street No.1A Gaspe
Road and bounded as follows: that is to say on or towards the East
partly by N.A.No.335,290 belonging to Bombay Catholic Housing Co-
operative Society on or towards the West partly by plot No.82 of T.P.S.
IV partly plot No.83 of T.P.S. IV and partly plot No.84 and a passage on
or towards the North by Chapel Road and N.A. No.322 and on or
towards the South by partly plot No.85 of T.P.S. IV and N.A. No.337.”
36. The Agreement leaves little room for doubt that the subject matter of the
transaction comprised the entirety of the immovable property described in the
Schedule appended thereto. Clause 1 records the deceased owner’s agreement
to sell the lands together with the structures standing thereon, while Clause 12
contemplates execution of a conveyance in favour of Respondent No. 2 or its
nominee upon fulfilment of the contractual obligations. Significantly, Clause 14
provides that, upon completion of the sale, vacant possession of the property
Page 19 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
would be delivered to Respondent No. 2, save and except the existing chawl,
possession whereof was to be transferred by attornment of the tenants in favour
of Respondent No. 2. The clause further authorizes Respondent No. 2, upon
such attornment, to deal with the tenants in such manner as it deemed fit.
37. The Supplementary Agreement does not alter the subject matter of the
transaction. It merely records the additional consideration payable in respect of
the incomplete structure, which had inadvertently remained to be incorporated
in the principal Agreement. The Supplementary Agreement thus supplements
the financial terms of the transaction but does not evince any intention to
exclude the chawl or any portion of the land from the proposed conveyance.
38. The AFS, executed shortly thereafter between Respondent No. 2 and the Chief
Promoter of the proposed Petitioner Society, proceeds on the same footing. It
describes the very same property as the subject matter of the proposed
development and contemplates construction of the residential building thereon
followed by conveyance of the land together with the completed building in
favour of the proposed Society. Clause 12 of the AFS again specifically
recognises the existence of the chawl and provides that possession thereof
would be delivered by attornment of the tenants, whereupon the Society would
become entitled to receive rent from such tenants. The Schedule appended to
the AFS is identical to that contained in the Agreement.
39. A conjoint reading of these documents discloses a consistent contractual
arrangement. The property agreed to be conveyed remained the same
throughout. Neither the Agreement, the Supplementary Agreement nor the AFS
contains any reservation whereby the deceased owner retained ownership of the
chawl, the land bearing CTS No. H-405 or the lands bearing CTS Nos. H-393
Page 20 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
and H-386. Equally, none of these documents contemplates that, in the event of
any alleged breach or non-performance, those portions would stand
automatically excluded from the conveyance proposed to be executed in favour
of Respondent No. 2 or its nominee.
40. At the same time, it is equally evident that the contractual documents
contemplated certain reciprocal obligations between the parties, including
payment of the agreed consideration, execution of the conveyance and
attornment of the chawl tenants. Whether those obligations were duly
performed and what legal consequences ensued from any alleged non-
performance are matters distinct from the construction of the contractual
documents themselves. Those issues fall to be considered independently while
examining the scope of the enquiry contemplated under Section 11 of MOFA.
41. Respondent Nos. 3 and 4, however, contend that the contemplated sale in
favour of Respondent No. 2 never culminated in a completed conveyance since
the balance consideration under the Agreement remained unpaid and,
consequently, the tenants occupying the chawl were never attorned in favour of
Respondent No. 2. It is further submitted that Respondent Nos. 3 and 4 have,
throughout, continued to exercise the rights of landlords by collecting rent from
the chawl tenants, paying municipal outgoings and prosecuting tenancy
proceedings in respect thereof. These assertions are disputed by the Petitioner.
42. In my view, it is neither necessary nor permissible, in proceedings under
Section 11 of MOFA, to conclusively adjudicate upon these disputed questions.
Whether the balance consideration stood duly paid, whether the sale
contemplated under the Agreement stood fully performed, whether attornment
of the chawl tenants ever took place, and what legal consequences flow
Page 21 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
therefrom are matters bearing upon the inter se proprietary rights of the parties.
Such issues fall within the province of the competent Civil Court and cannot be
finally determined by the Competent Authority while exercising powers under
Section 11 of MOFA.
43. What is material for the purposes of the present proceedings is that neither the
Agreement nor the Supplementary Agreement contains any provision reserving
the chawl or the Balance Portion from the subject matter of the proposed
conveyance. On the contrary, both documents proceed on the footing that the
property agreed to be conveyed comprised the entirety of the land described in
the Schedule together with the structures standing thereon, including the
existing chawl. The mode by which possession of the chawl was to be
delivered, namely, by attornment of the tenants - does not detract from the fact
that the chawl itself formed part of the property agreed to be conveyed.
44. Consequently, the disputed questions regarding payment of consideration,
attornment of tenants and the continued exercise of landlordship by Respondent
Nos. 3 and 4 could not, by themselves, furnish a valid basis for restricting the
extent of the unilateral deemed conveyance. Those disputes may well survive
for adjudication before the competent Civil Court. However, they could not
have been conclusively assumed against the Petitioner so as to exclude the
Balance Portion from the certificate issued under Section 11 of MOFA.
45. The conclusions emerging from the Agreement are reinforced by the AFS
executed between Respondent No. 2 and the Chief Promoter of the proposed
Petitioner Society. The AFS is of particular significance since it embodies the
contractual arrangement pursuant to which the flats came to be purchased by
the members of the Petitioner Society and the promoter undertook to convey the
Page 22 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
property in favour of the Society.
46. Clause 1 of the AFS records the promoter’s agreement to sell the land described
in the First Schedule together with the building and garages to be constructed
thereon. The First Schedule reproduces the very same property as is described
in the Agreement. There is no exclusion or reservation in respect of the chawl
standing on CTS No. H-405 or the lands bearing CTS Nos. H-393 and H-386.
47. Equally significant are Clauses 11 and 12 of the AFS. Clause 11 contemplates
delivery of possession of the completed building to the Purchaser and / or the
proposed Society upon payment of the agreed consideration. Clause 12
specifically recognises the existence of the ground floor chawl occupied by the
tenants of the original owner and provides that possession thereof would be
delivered by attornment of the tenants in favour of the Purchaser. The clause
further stipulates that, upon such attornment, the Purchaser would become
entitled to receive rent from the tenants of the chawl.
48. These provisions unmistakably demonstrate that the parties treated the chawl as
forming part of the very property which was proposed to be conveyed in favour
of the Society. Had it been intended that the chawl or the land beneath it would
continue to remain outside the scope of the proposed conveyance, there would
have been no occasion to incorporate provisions dealing with the manner in
which possession of the chawl was to be delivered or the entitlement of the
Society to receive rent from its tenants. The contractual scheme, read as a
whole, therefore proceeds on the footing that the chawl was to accompany the
conveyance and not remain with the original owner.
49. Likewise, the AFS also does not distinguish between the portions of land upon
Page 23 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
which the newly constructed building was to stand and the remaining lands
forming part of the scheduled property. The promoter agreed to convey the
property described in the First Schedule as one composite unit. The contractual
documents do not support a bifurcation of the scheduled property into one
portion liable to be conveyed and another liable to be retained by the original
owner. The distinction introduced by the Competent Authority is, therefore, not
borne out by the contractual documents themselves. The AFS consistently
proceeds on the basis that the property agreed to be conveyed comprised the
entire property described in the First Schedule and not merely the portion
occupied by the Petitioner’s building.
50. Having examined the contractual documents, it is now necessary to consider the
scope of the enquiry contemplated under Section 11 of MOFA. The said
provision obliges the promoter to complete his title and convey to the co-
operative society of flat purchasers his right, title and interest in the land and
building in accordance with the agreement executed under Section 4 of MOFA.
Where the promoter fails to discharge that statutory obligation within the
prescribed period, the Competent Authority is empowered to issue a certificate
enabling execution and registration of a unilateral deemed conveyance. Section
11 is reproduced hereunder:
“ 11 . Promoter to convey title, etc., and to execute
documents, according to the agreement.
(1) A promoter shall take all necessary steps to
complete his title and convey to the organisation of persons,
who take flats, which is registered either as a co-operative
society or as a company as aforesaid or to an association of flat
takers [or apartment owners] , his right, title and interest in the
land and building, and execute all relevant documents therefor
in accordance with the agreement executed under section 4
and if no period for the execution of the conveyance is agreed
upon, he shall execute the conveyance within the prescribed
period and also deliver all documents of title relating to the
Page 24 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
property which may be in his possession or power. Page No. 40
of 79 Thursday, 08 May 2025 Neeta Sawant WP-18739-2024
with WP-4649-2025-FC
(2) It shall be the duty of the promoter to file with
the Competent Authority, within the prescribed period, a copy
of the conveyance executed by him under sub-section (1).
(3) If the promoter fails to execute the
conveyance in favour of the Cooperative society formed under
section 10 or, as the case may be, the Company or the
association of apartment owners, as provided by sub-section
(1), within the prescribed period, the members of such Co-
operative society or, as the case may be, the Company or the
association of apartment owners may, make an application, in
writing, to the concerned Competent Authority accompanied by
the true copies of the registered agreements for sale, executed
with the promoter by each individual member of the society or
the Company or the association, who have purchased the flats
and all other relevant documents (including the occupation
certificate, if any), for issuing a certificate that such society, or
as the case may be, Company or association, is entitled to have
an unilateral deemed conveyance, executed in their favour and
to have it registered.
(4) The Competent Authority, on receiving such
application, within reasonable time and in any case not later
than six months, after making such enquiry as deemed
necessary and after verifying the authenticity of the documents
submitted and after giving the promoter a reasonable
opportunity of being heard, on being satisfied that it is a fit case
for issuing such certificate, shall issue a certificate to the Sub-
Registrar or any other appropriate Registration Officer under
the Registration Act, 1908, certifying that it is a fit case for
enforcing unilateral execution, of conveyance deed conveying
the right, title and interest of the promoter in the land and
building in favour of the applicant, as deemed conveyance.
(5) On submission by such society or as the case
may be, the Company or the association of apartment owners,
to the Sub-Registrar or the concerned appropriate Registration
Officer appointed under the Registration Act, 1908, the
certificate issued by the Competent Authority alongwith the
unilateral instrument of conveyance, the Sub-Registrar or the
concerned appropriate registration Officer shall,
notwithstanding anything contained in the Registration Act,
1908, issue summons to the promoter to show cause why, such
unilateral instrument should not be registered as ‘deemed
conveyance’ and after giving the promoter and the applicants a
reasonable opportunity of being heard, may on being satisfied
that it was fit case for unilateral conveyance, register that
instrument as, ‘deemed conveyance’.”
Page 25 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
51. A plain reading of Section 11 indicates that the enquiry before the Competent
Authority is directed towards identifying the promoter’s obligation under the
agreement executed with the flat purchasers and enforcing that obligation where
the promoter has failed to perform it. The exercise is, therefore, one of statutory
enforcement and not of adjudication of proprietary rights. The Competent
Authority is required to ascertain the extent of the promoter’s right, title and
interest agreed to be conveyed and to issue an appropriate certificate in respect
thereof.
52. Equally, the jurisdiction conferred by Section 11 is circumscribed. The
Competent Authority is not constituted as a forum for finally determining
disputed questions of title, ownership or the validity of competing claims to the
property. Those questions remain within the exclusive province of the
competent Civil Court. The certificate of unilateral deemed conveyance merely
facilitates conveyance of the promoter’s right, title and interest and does not
operate as a conclusive adjudication of inter-sé proprietary rights between
rival claimants.
53. The ambit of the Competent Authority’s jurisdiction has been succinctly
explained by this Court in Mazda Construction Company (supra) wherein it has
been held that the Competent Authority merely steps in to perform the statutory
obligation which the promoter has failed to perform. The enquiry is, therefore,
guided by the agreement executed under Section 4 of MOFA and other
contemporaneous documents governing the transaction. At the same time, a
unilateral deemed conveyance cannot operate beyond the promoter’s own right,
title and interest, nor can the Competent Authority conclusively determine
disputes relating to ownership or title.
Page 26 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
54. The same principles emerge from the decisions of this Court in Dhuri Co-
operative Housing Society (supra), New Sonal Industries Premises (supra),
Blue Heaven CHSL (supra) and Shree Siddharth Construction Builders &
Developers (supra), as also from the decision of the Supreme Court in
Arunkumar H. Shah HUF (supra) . These authorities consistently recognise that
while the Competent Authority must give effect to the contractual obligations
undertaken by the promoter, proceedings under Section 11 do not result in a
final adjudication of disputed questions of title, all of which remain open to be
determined in appropriate civil proceedings.
55. The aforesaid principles furnish the framework within which the legality of the
impugned order is required to be examined. The question, therefore, is not
whether Respondent Nos. 3 and 4 have ultimately established or disproved their
proprietary rights in respect of the Balance Portion or the Access Portion. The
question is whether the Competent Authority was justified, while exercising the
limited jurisdiction conferred by Section 11 of MOFA, in excluding those
portions from the certificate of unilateral deemed conveyance on the basis of
disputed questions relating to performance of the Agreement and the parties’
competing claims to title.
56. Tested on the aforesaid principles, the reasoning adopted by the Competent
Authority cannot be sustained. As noticed earlier, both the Agreement and the
AFS consistently describe the entire scheduled property as the subject matter of
the proposed conveyance. Neither document carves out the chawl standing on
CTS No. H-405 nor the lands bearing CTS Nos. H-393 and H-386 from the
property agreed to be conveyed. On the contrary, both documents specifically
contemplate that the chawl would form part of the transaction, possession
Page 27 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
thereof being deliverable by attornment of the tenants.
57. The principal reasons assigned by the Competent Authority for excluding the
Balance Portion are that the balance consideration under the Agreement was
allegedly not paid, the contemplated attornment of the chawl tenants did not
take place and Respondent Nos. 3 and 4 continued to receive rent from the
tenants and exercise the rights of landlords. Whether those assertions are
factually correct, and if so, what legal consequences follow therefrom, are
matters upon which the parties are seriously at variance. Those disputed
questions could not, however, furnish the basis for restricting the extent of the
deemed conveyance in proceedings under Section 11 of MOFA. The Competent
Authority was required to examine the promoter’s contractual obligation to
convey the property agreed under the Section 4 agreement. It was not
exercising the jurisdiction of a Civil Court to adjudicate whether the Agreement
stood fully performed, whether the consideration was duly paid, whether the
sale stood completed in law, whether the contemplated attornment occurred or
whether Respondent Nos. 3 and 4 consequently retained any independent
proprietary rights in the Balance Portion. Each of those questions lies beyond
the scope of the summary enquiry contemplated under Section 11.
58. Indeed, acceptance of the reasoning adopted in the impugned order would
necessarily require the Competent Authority to pronounce upon the legal effect
of the alleged non-payment of consideration, the consequences of non-
attornment of tenants and the competing claims of ownership asserted by the
parties. Such an exercise would travel beyond the limited jurisdiction conferred
under Section 11 and encroach upon matters reserved for adjudication by the
competent Civil Court.
Page 28 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
59. The continued collection of rent by Respondent Nos. 3 and 4, the institution of
tenancy proceedings by them or their assertion of ownership over the chawl
may constitute circumstances capable of supporting their rival claim to title.
Equally, the Petitioner disputes those consequences by relying upon the
contractual stipulations relating to attornment and constructive delivery of
possession. These are rival proprietary claims which remain open to be agitated
before the competent Civil Court. They could not have been conclusively
accepted by the Competent Authority while determining the extent of the
property liable to be covered by the deemed conveyance.
60. The same reasoning applies to the Access Portion comprising CTS Nos. H-393
and H-386. The contractual documents do not indicate that those lands were to
be retained by the original owner or that only an easementary right was
intended to be conferred upon the Society. The grant of merely a joint right of
way proceeds upon the assumption that ownership of those lands was liable to
remain divided between the parties. Such an assumption again involves an
adjudication upon competing proprietary rights which falls outside the scope of
proceedings under Section 11 of MOFA. If the scheduled property agreed to be
conveyed included those lands, the Competent Authority could not, on the basis
of disputed claims of user or access, restrict the conveyance to an easementary
right alone.
61. It must, however be emphasized that the issuance of a modified certificate of
unilateral deemed conveyance does not amount to a declaration that the
Petitioner has acquired an indefeasible title to the Balance Portion or the Access
Portion. A deemed conveyance under Section 11 merely facilitates conveyance
of such right, title and interest as the promoter was obliged to convey under the
governing contractual documents. It does not extinguish or finally determine
Page 29 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
any competing proprietary rights asserted by third parties, all of which remain
open to be adjudicated in properly constituted civil proceedings.
62. The impugned order, therefore, suffers from a jurisdictional error. Instead of
confining itself to ascertaining the extent of the promoter’s contractual
obligation under the governing agreements, the Competent Authority proceeded
to adjudicate disputed questions bearing upon proprietary rights and, on that
basis, excluded the Balance Portion from the certificate of deemed conveyance
and restricted the Petitioner’s rights over the Access Portion to a mere joint
right of way. Such an approach is inconsistent with the scheme of Section 11 of
MOFA and the principles laid down in Mazda Construction Company (supra),
Dhuri Co-operative Housing Society (supra), New Sonal Industries Premises
(supra), Blue Heaven CHSL (supra) and Arunkumar H. Shah HUF (supra).
63. The impugned order, therefore, warrants interference under Articles 226 of the
Constitution of India to the limited extent indicated hereinbelow. At the same
time, it is once again clarified that neither this judgment nor the modified
certificate of unilateral deemed conveyance shall be construed as a final
adjudication upon the rival claims of title, ownership or landlordship asserted
by Respondent Nos. 3 and 4, all of which are expressly kept open for
determination in appropriate civil proceedings which shall decide the same on
their own merits and in accordance with law, uninfluenced by any observations
contained in this judgment except to the extent of delineating the limited scope
of proceedings under Section 11 of MOFA.
64. For all the aforesaid reasons, the impugned order cannot be sustained insofar as
it excludes the Balance Portion from the certificate of unilateral deemed
conveyance and confines the Petitioner’s rights over the Access Portion to a
Page 30 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
joint right of way. The exclusion of those portions is founded upon disputed
questions relating to the performance of the Agreement and the parties’ rival
proprietary claims, matters which lie outside the scope of the enquiry
contemplated under Section 11 of MOFA. The present Writ Petition is
accordingly disposed of in terms of the following order:
::ORDER::
(A) The present Writ Petition is allowed.
st
(B) The impugned order dated 31 January 2017 passed by Respondent
No.1 – Competent Authority is quashed and set aside insofar as it:
(i) excludes the land bearing CTS No. H-405 together with the
chawl standing thereon from the certificate of unilateral
deemed conveyance; and
(ii) restricts the Petitioner’s rights in respect of the lands
bearing CTS Nos. H-393 and H-386 to a joint right of way.
(C) Respondent No.1 shall, within a period of eight weeks from the
date on which this judgment is uploaded, issue a modified
certificate under Section 11(4) of MOFA certifying the Petitioner’s
entitlement to unilateral deemed conveyance in respect of the entire
property described in the governing contractual documents,
including the aforesaid portions, namely, CTS No. H-405
admeasuring about 388 square metres and CTS Nos. H-393 and H-
386 admeasuring about 352 square metres and 286 square metres
respectively.
(D) Since a unilateral deed of conveyance has already been executed
Page 31 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
WP/1435/2017
Girnar CHSL vs. District Dy. Registrar & Ors.
st
and registered pursuant to the certificate dated 31 January 2017, it
shall be open to the Petitioner to present for registration such
supplemental or corrective instrument as may be necessary to give
effect to the modified certificate. Upon such presentation, the
concerned registering authority shall process the same in
accordance with law.
(E) It is clarified that neither the modified certificate nor any
conveyance executed pursuant thereto shall be construed as finally
determining or extinguishing any independent right, title or
interest, if any, claimed by Respondent Nos. 3 and 4 or any other
person in respect of the Balance Portion or the Access Portion. All
such claims are expressly kept open to be determined in
appropriate civil proceedings.
(F) Rule is made absolute in the aforesaid terms.
(G) There shall be no order as to costs.
( FARHAN P. DUBASH, J. )
65. After the judgment was pronounced, Mr. Vivek M. Sharma, learned Counsel
who appears for Respondent Nos. 3 and 4 seeks a stay on the effect and
operation of the judgment.
66. Considering the above, the judgment shall remain stayed for a period of four
weeks from today.
( FARHAN P. DUBASH, J. )
Shubham Gadhavepatil
Page 32 of 32
-----------------------------------------------
th
Judgment dated 30 July 2026
Uploaded on - 30/07/2026 Downloaded on - 30/07/2026 20:38:42
Powered by TCPDF (www.tcpdf.org)