Full Judgment Text
2026:BHC-AS:18202
wp-3171-2017-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3171 OF 2017
Balwantpuram Samrajya Co-operative
Housing Society Ltd., through its
Chairman/Secretary Having its address
at Co-operative Housing Society Ltd,
S. No.110/1/A, Shivtirth Nagar,
Kothrud, Pune-411038
…
Petitioner
V/s.
1. M/s. Pethkar Projects
having office at S No.117+118,
Plot No. 21-B, Madhavnaug,
Paud Road, Kothrud, Pune- 411038
Through its partners
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.04.18
12:12:45 +0530
2. Mrs. Kumudini Chandrakant Pethkar
Age- 60 year,s Occ- Business
3. Sachin Chandrakant Pethkar
Age- 42 years, Occ- Business,
Both Respondent nos. 2 and 3
Residing at 538/B/3, Shanivarpeth,
Appa Balwant Chowk, Pune -400 030.
…
Respondents
Mr. Ketan A. Dhavle, for the petitioner.
Mr. S. S. Patwardhan with Mr. A. A. Hardas with Mr. A.
S. Patwardhan, for the respondent Nos.1 to 3.
Smt. M.S. Srivastava, AGP for State.
CORAM : AMIT BORKAR, J.
RESERVED ON : MARCH 23, 2026
PRONOUNCED ON : APRIL 18, 2026
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JUDGMENT:
1. By the present Writ Petition instituted under Articles 226 and
227 of the Constitution of India, the petitioner has assailed the
Judgment and Order dated 23 September 2015 passed by the
Deputy Registrar, Cooperative Societies, Pune in Deemed
Conveyance Application No.DC1001501/2015, whereby the said
application came to be rejected.
2. The facts giving rise to the present petition, in brief, are that
Respondent No. 2 executed a registered Development Agreement
dated 4 April 1997 together with a registered Power of Attorney in
favour of Respondent No. 1 in respect of the entire parcel of land
bearing Survey No. 110/1/A, C.T.S. No. 1148, situated at Kothrud,
Taluka Haveli, District Pune and within the municipal limits of
Pune Municipal Corporation, admeasuring in aggregate 1,37,510
square metres, thereby conferring upon Respondent No. 1 all
development rights in relation thereto, including the right to
develop the said property and to sell the constructed premises
together with the appurtenant land. Pursuant thereto, Respondent
No. 1 commenced development of the said property after
preparing a layout plan and elected to undertake development in
separate portions. The layout and sketch on record indicate that
Portion ‘A’ consists of a building known as Balwantpuram
Shefalika. Portion ‘B’ comprises an independent bungalow
belonging to the developer/owner along with a temple. Portion ‘C’
consists of three separate buildings bearing Nos. L-5, L-6 and L-7.
The record further indicates that Portions ‘A’ and ‘C’ are distinct
and independent from one another and are provided with separate
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common amenities. The development of Portions ‘A’, ‘B’ and ‘C’ has
been completed independently since long and, according to the
petitioner, no further FSI can be loaded thereon. It is further
contended that Portion ‘D’ is geographically distinct and separated
by an 80 feet wide Development Plan road. Accordingly, it is the
petitioner’s case that the development of Portions ‘A’, ‘B’ and ‘C’
stands completed and bears no nexus whatsoever with the
development of Portion ‘D’. It is further stated that development
rights in respect of Portion ‘D-1’ were assigned by the developer to
M/s. Welworth Associates, who constructed a separate group of
buildings known as “Silver Crust”. It is, therefore, contended that
the land separated by the DP road cannot be treated as part of the
project known as “Balwantpuram Samrajya”, wherein buildings L-
5, L-6, and L-7 are situated and wherein separate cooperative
societies have been formed.
3. Respondent No. 1 thereafter submitted building plans for
sanction before the Pune Municipal Corporation and, pursuant
thereto, Commencement Certificate bearing No. CC/0151/05
dated 12 April 2005 came to be issued. Respondent No. 1
completed construction of Wings A, B, C, D, E, F and G comprising
in all 224 flats on the subject property. Completion Certificates
came to be issued by the Corporation on 30 March 2007 in respect
of all units in Wings D, C, F and 27 units in Wing G, and further on
28 March 2008 in respect of all units in Wings A, B, E and one unit
with parking in Wing G. Respondent No. 1 also executed registered
agreements under Section 4 of the Maharashtra Ownership of Flats
Act, 1963 in favour of the respective flat purchasers. The
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petitioner-society comprises 224 members who are stated to be in
possession of their respective premises since the year 2007.
4. It is the petitioner’s case that under Section 10 of the
Maharashtra Ownership of Flats Act, 1963 read with Rule 8 of the
Rules framed thereunder, Respondent No.1, being the
promoter/developer, was under a statutory obligation to form a
cooperative society, company, or association of apartment owners
within the prescribed period. Initially, Respondent No. 1 failed to
discharge the said statutory obligation. However, upon repeated
requests, Respondent No. 1 submitted an application before the
Deputy Registrar, Cooperative Societies, Pune seeking registration
of the Cooperative Housing Society. Consequently, the Deputy
Registrar issued a Registration Certificate on 7 January 2009 and
the petitioner-society came to be registered and became functional
under the name “Balwantpuram Samrajya Cooperative Housing
Society Limited”. The petitioner further contends that Respondent
No.1 was under a further obligation under Section 11 of the
Maharashtra Ownership of Flats Act, 1963 read with Rule 9 of the
Rules to convey title in respect of the land and building in favour
of the petitioner-society within the prescribed period. Since
Respondent No. 1 failed to comply with the said statutory
requirement, the petitioner-society filed an application dated 5
May 2015 under Section 11(3) of the said Act seeking issuance of
certificate for unilateral deemed conveyance.
5. According to the petitioner, the bye-laws of Balwantpuram
Samrajya Cooperative Housing Society specifically define the
society under Clause (xxiii) and restrict its area of operation to
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Survey No. 110/1/A. It is, therefore, contended that the petitioner-
society is entitled to conveyance of the said land in its favour.
During the proceedings before the District Deputy Registrar,
Respondent No. 1 appeared and Respondent No. 2 filed documents
on 14 July 2015. Thereafter, Respondent No. 1 also tendered
further documents and written submissions on 15 September 2015
opposing the petitioner’s entitlement to deemed conveyance. The
Competent Authority, namely the District Deputy Registrar,
Cooperative Societies, Pune, heard both sides on 19 September
2015 and by Order dated 23 September 2015 rejected the
petitioner’s application for deemed conveyance on the ground that
the same was premature. Aggrieved thereby, the petitioner has
approached this Court by way of the present petition.
6. Mr. Dhavle, learned counsel appearing for the petitioner,
submitted that the Competent Authority committed a serious error
in construing only Clause 10 of the agreements for sale executed in
favour of the purchasers. He submitted that though Clause 10
stipulates that final conveyance is to be executed within one year
from obtaining final completion certificate of the entire project,
Clause 16 specifically provides that proportionate conveyance is to
be effected within one year from registration of the society. He
further submitted that the Authority erred in holding the
petitioner’s application to be premature despite similarly situated
societies, including Balwantpuram Samrajya L-6 Cooperative
Housing Society in the same project, having already obtained
deemed conveyance. It is his submission that the Authority failed
to appreciate that in those cases deemed conveyance was sought
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for the entire land, whereas in the present case the petitioner has
sought only proportionate conveyance of land, which would not
prejudice or obstruct any future development.
7. Per contra, Mr. Patwardhan, learned counsel appearing for
the respondents, submitted that the impugned order is fully
consistent with the terms of the agreements executed under
Section 4 of the Maharashtra Ownership of Flats Act, 1963. He
submitted that the Competent Authority has rightly considered the
mutual understanding between the parties regarding formation of
an Apex Society/Common Organisation as contemplated under
Clause 31 of the agreement and the eventual transfer of common
areas thereto. It is submitted that since the stage contemplated
under the said clauses and other related provisions has not yet
arisen, the Competent Authority rightly held the petitioner’s
application to be premature. According to him, the impugned
order is legal, proper, and represents the only plausible view on
the facts of the case and, therefore, warrants no interference in
exercise of supervisory jurisdiction under Article 227 of the
Constitution.
8. Learned counsel for the respondents further submitted that
the sanctioned layout plan clearly demonstrates that the total
development potential of the land including FSI and TDR is
1,80,652.77 square metres. He submitted that the architect’s
certificate relied upon by the petitioner wrongly calculates
proportionate area by taking 1,19,156 square metres as the
denominator, which merely represents the area available for
buildings and not the total sanctioned area. According to him,
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since the correct total sanctioned area is 1,80,652.77 square
metres, the petitioner’s architect has committed a manifest error in
calculation. On proper reverse calculation, the maximum
proportionate land area to which the petitioner could claim
entitlement would only be 9,535.17 square metres and not
14,198.25 square metres as sought to be projected.
9. It is further submitted on behalf of the respondents that the
Competent Authority has rightly taken into consideration the fact
that the present project constitutes a “Layout Development”
wherein construction of different buildings has been undertaken in
phases. According to the respondents, the Competent Authority
correctly appreciated the phased nature of the development and
rightly rejected the petitioner’s application under Section 11 of the
Act.
10. Learned counsel for the respondents further placed reliance
upon the factual particulars of the development and submitted that
the total plot area admeasures 1,37,510 square metres, whereas
the net plot area is 1,02,247.25 square metres. The total
permissible FSI area is 1,19,156 square metres and the permissible
TDR is 40,898.90 square metres, thereby giving the project a total
FSI potential of 1,60,054.90 square metres. It is further submitted
that the built-up area of Samrajya L-5 is 16,806.30 square metres
and the ground coverage area occupied by the said building is
2,902.48 square metres. It is also pointed out that building
permissions and commencement certificates bearing Nos.
CC/2260/03 dated 23 March 2004, CC/0151/05 dated 12 April
2005, and CC/4785/2006 dated 30 March 2007 were issued in
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respect of Wings A to G of Building L-5, and
occupancy/completion certificates bearing Nos. BCO/0614/06
dated 30 March 2007 and BCO/14/5/148 dated 28 March 2008
were thereafter issued in respect thereof.
REASONS AND ANALYSIS:
11. Having heard the learned advocates appearing for the
respective parties and upon careful consideration of the pleadings,
documents and material placed on record, this Court finds that the
controversy in the present matter revolves around the legality of
the order passed by the Competent Authority rejecting the
petitioner’s application for deemed conveyance on the ground that
the same was premature. The issue which therefore arises for
consideration is whether, in the facts of the present case, the
Competent Authority was justified in holding that the petitioner
society had approached the authority before accrual of its legal
right to seek conveyance. Upon examination of the record, this
Court is unable to agree with the said conclusion.
12. At the outset, it is not in dispute that the petitioner is a duly
registered cooperative housing society and that its registration was
effected on 7 January 2009. It is equally not in dispute that the flat
purchasers had entered into agreements under Section 4 of the
Maharashtra Ownership of Flats Act, 1963, and the buildings in
question had substantially received completion and occupancy
certification prior thereto. The members of the petitioner society
are admittedly in possession of their respective premises since the
year 2007. These facts assume importance because once a
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cooperative society of flat purchasers is formed, the statutory
obligation cast upon the promoter under Section 11 of the
Maharashtra Ownership of Flats Act becomes operative, subject to
the terms of agreement not being inconsistent with the statutory
mandate.
13. The Competent Authority, while rejecting the application,
has proceeded principally on the basis of Clause 10 of the
agreement executed with flat purchasers, which provides that final
sale conveyance of the building shall be executed within one year
from obtaining final completion certificate in respect of the entire
building project. However, in the considered opinion of this Court,
the Competent Authority committed an error in isolating Clause 10
and reading the same in exclusion of the remaining terms of the
agreement. A contractual document must be read harmoniously
and as a whole. It is impermissible to select one clause in isolation
while ignoring another clause which directly bears upon the same
subject-matter. In the present case, Clause 16 of the agreement
specifically provides that the promoter shall execute conveyance of
proportionate share in the land and building within one year from
the date of registration of the society. This stipulation is clear in
language and leaves little ambiguity. Once the society stood
registered on 7 January 2009, the obligation to execute
conveyance in favour of the society, at least to the extent
contemplated therein, arose within one year therefrom. Thus,
prima facie, the promoter was required to complete such
conveyance on or before January 2010. The finding recorded by
the Competent Authority that the petitioner’s application filed in
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the year 2015 was premature is therefore contrary to the express
contractual stipulation itself. If the agreement contemplates
conveyance within one year of society registration, an application
made after more than six years of such registration cannot, by any
accepted principle of interpretation, be regarded as premature.
14. The submission advanced on behalf of the respondents that
the project is a larger layout development and that the parties
contemplated an Apex Society or common organisation also does
not by itself defeat the petitioner’s statutory and contractual
entitlement. Merely because the layout may consist of several
phases or wings does not mean that the promoter may indefinitely
postpone conveyance after formation of the society. If such an
argument is accepted, the obligation under Section 11 of the
Maharashtra Ownership of Flats Act would become wholly
uncertain and dependent entirely upon the discretion of the
promoter, which is not the object of the statute. The legislative
intent behind the concept of deemed conveyance is precisely to
remedy such situations where promoters delay transfer despite
formation of the society and completion of occupation.
15. This Court, while considering similar issue in the matter of
One Astoria Cooperative Housing Society Federation Limited
Versus Peninsula Land Limited and Others 2026 SCC OnLine Bom
2059, after taking note of earlier judgment in Flagship
Infrastructure (P) Ltd. v. Competent Authority, 2025 SCC OnLine
Bom 1240, has already held in clear terms that once requirements
contemplated under the Maharashtra Ownership of Flats Act stand
fulfilled, the promoter cannot avoid or postpone execution of
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conveyance merely on ground that larger project is incomplete,
future phases of development are remaining, revised layouts may
be sanctioned later, or further construction is proposed in other
portion of layout. It has been held that Rule 9 of the MOFA Rules
casts statutory obligation upon promoter to execute conveyance
within prescribed time after registration of society unless legally
permissible alternative period is specifically agreed, and such
statutory mandate cannot be made dependent upon uncertain and
contingent future events which may or may not happen and which
are dependent upon approvals, finances and developmental
decisions beyond control of flat purchasers. The Court has further
observed that MOFA being welfare legislation enacted for
protection of flat purchasers must receive beneficial interpretation
so as to secure certainty of title and ownership, and the period
prescribed under Rule 9 is substantive safeguard to prevent
promoter from indefinitely retaining control over land and
common amenities after sale and occupation of flats. It has also
been specifically held that the expression “period” under Rule 9
necessarily means fixed and ascertainable time and cannot be
interpreted in manner, so as to convert statutory timeline into
indefinite and elastic duration dependent upon future
developmental schedule of promoter, for otherwise promoter may
continue retaining title for unlimited years by merely asserting
future development. The said judgment further lays down that
contractual stipulations between promoter and purchasers,
including clauses postponing conveyance till completion of
township or formation of apex body, cannot override mandatory
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obligations under Section 11 and Rule 9 of MOFA, since statutory
duties cannot be diluted or contracted out by private agreement. It
has been further observed that where buildings are complete,
occupation certificates are issued, societies are registered, and
purchasers are in settled possession, the right to seek deemed
conveyance becomes enforceable and cannot be defeated merely
because some residual or future development in larger project
remains. The Court also clarified that common areas and amenities
promised to purchasers and reflected in sanctioned plans cannot
be withheld from societies indefinitely on pretext of future
development, though lawful future development on separately
reserved portions may continue if permissible in law, provided
rights already vested in purchasers are not impaired. Thus, the
settled legal position emerging from the aforesaid judgment is that
once society is registered, building is complete and occupied, and
promoter has failed to execute conveyance within statutory period,
the society becomes entitled to invoke machinery under Section
11(3) and seek deemed conveyance, and such statutory right
cannot be frustrated by plea of incomplete township, proposed
future construction, shared amenities, or contemplated apex body
at uncertain future time.
16. The respondents have seriously disputed the architect’s
calculation placed by the petitioner and contend that the
denominator adopted for computing proportionate land area is
erroneous. This dispute, in the opinion of this Court requires
factual verification before any certificate of deemed conveyance is
granted. In the considered view of this Court, therefore, while the
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Competent Authority clearly erred in rejecting the petitioner’s
application as premature, this Court does not deem it appropriate
to direct issuance of deemed conveyance certificate for any
specific land area without permitting scrutiny of the petitioner’s
entitlement in accordance with prevailing norms. The ends of
justice would be better served if the matter is remanded to the
Competent Authority for fresh consideration limited to the
question of determination of the petitioner’s proportionate
entitlement and issuance of certificate accordingly.
17. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) The Writ Petition is partly allowed;
(ii) The Judgment and Order dated 23 September 2015
passed by the Deputy Registrar and Competent Authority,
Cooperative Societies, Pune in Deemed Conveyance
Application No. DC1001501/2015 is hereby quashed and set
aside;
(iii) The matter is remanded back to the Competent
Authority for fresh consideration of the petitioner’s
application under Section 11(3) of the Maharashtra
Ownership of Flats Act, 1963;
(iv) The Competent Authority shall reconsider the
application afresh on its own merits and in accordance with
law, keeping in view the observations recorded in the present
judgment and the legal position governing execution of
conveyance after registration of the society;
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(v) It is held that the application for deemed conveyance
filed by the petitioner could not have been rejected as
premature, inasmuch as the obligation to execute
conveyance had arisen within one year from the date of
registration of the petitioner society in the year 2009;
(vi) The parties are granted liberty to place on record fresh
Architect’s Certificate and such additional
documents/material as may be necessary for determination
of the petitioner society’s proportionate entitlement in
accordance with Government Resolution dated 22 June
2018;
(vii) Upon receipt of such material, the Competent
Authority shall determine the extent of land entitlement of
the petitioner and thereafter issue appropriate
certificate/order in accordance with law after granting due
opportunity of hearing to all concerned parties;
(viii) The Competent Authority shall endeavour to complete
the aforesaid exercise within a period of twelve weeks from
the date of appearance of the parties before it;
(ix) The parties shall appear before the Competent
th
Authority on 27 April 2026 at 11 am and no separate notice
shall be required to be issued;
(x) Rule is made absolute in the aforesaid terms. No order
as to costs.
(AMIT BORKAR, J.)
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