Sterling Apartment Co-Operative Housing vs The Competent Authority And Dist. Deputy Registrar

CNR No : HCBM010265052026

2026:BHC-AS:45354
Neeta Sawant 905-WP-8287-2026.docx

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8287 OF 2026
Sterling Apartment Co-operative
...Petitioner
Housing Society Ltd.
: Versus :
The Competent Authority and District
...Respondents
Deputy Registrar, Co-operative
Societies, Mumbai City (3) & Ors.
Mr. G.S Godbole, Senior Advocate with Mr. Dhruv S. Malhotra, Ms.
Chandrakala Singh and Mr. Devansh Malhotra, for the Petitioner.
Mr. Rohan Savant i/b Ms. Mariyah Khatkhatay, for Respondent No. 30(a),
30(b) & 32
Mr. Rohan Savant i/b Mr. Umar Khan, for Respondent No. 31
with Mr. Ved Mishra for Respondent Nos. 3 to 7.
Mr. Vincent D'silva
Mr. Suresh Sabrad with Ms. Jessy Payne, Mr. Pratik Sabrad, Mr. Amey
Sawant, Ms. Neha Parte and Ms. Eshwari Kuldalkar for Respondent
Nos.2(a), 2(d), 2(e) and 2(f).
Mr. R.A. Shaikh with Mr. Hasan Sayed, for Respondent No.8.
AGP for State.
Mr. P.G. Sawant,
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CORAM: SANDEEP V. MARNE, J.
JUDGMENT RESD ON : 29 OCTOBER 2026.
JUDGMENT PRON. ON : 5 NOVEMBER 2026.
JUDGMENT :
1) By this Petition, the Petitioner-Society has challenged order
dated 28 March 2016 passed by the District Deputy Registrar, Co-
operative Societies (3), Mumbai and Competent Authority (Competent
Authority) rejecting its application for issuance of certificate of
unilateral deemed conveyance of the land and the building.
2)
Petitioner is a co-operative housing society registered under
the provisions of the Maharashtra Co-operative Societies Act, 1960 ( MCS
Act ) in respect of the building constructed by Respondent No.29-
Developer on land bearing CTS. No. 6519 to 6523 (Part), Village,
Kolekalyan, Taluka-Andheri in Mumbai Suburban District. The building
comprises of 38 flats and 7 shops. Members of the Petitioner have
purchased their respective flats/units from Respondent No.29 by
executing Agreements for Sale under Section 4 of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 (MOFA) .
3)
Petitioner-society was registered on 16 February 1994. It
appears that several notices have been issued to the partners of
Respondent No.29-developer by Municipal Corporation of Greater
Mumbai (MCGM) alleging unauthorized construction carried out on the
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building of the Petitioner-society on 13 June 1997, 14 May 1999 and 20
July 1999. According to the Petitioner-society, initially plans were
sanctioned for construction of the building. However, Respondent No.29-
developer has apparently carried out construction in excess of the
sanctioned plan but the same is regularisable. Petitioner contends that
proposals have been submitted in the past for regularization of the
building and that the same have been approved by the Municipal
Corporation.
4)
It appears that in addition to the building of the Petitioner-
society, there are 11 other structures in the land which are in the form of
individual houses/huts. Several persons own title in respect of the land
and the land owners contend that the building has been unauthorizedly
constructed without any consent from most of the land owners.
5) In the above background, Petitioner-society filed application
for deemed conveyance of the entire land and the building bearing
Application No.60 of 2015 before the Competent Authority. The
application was rejected by the Competent Authority by order dated 28
March 2016 on various ground such as the land being declared as slum
area, illegality in construction of building, issuance of notices by MCGM,
rival claims of title by several persons etc. The society failed to challenge
the order dated 28 March 2016. The reason for doing so is attributed by
the Petitioner to several decisions relating to management of the society.
Instead of challenging the order dated 28 March 2016 rejecting the
application for deemed conveyance, the Society was advised to file a
fresh application for deemed conveyance and accordingly Application
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No. 197 of 2024 was filed once again seeking conveyance of the entire
land and the building. The application was allowed by the Competent
Authority by order dated 29 September 2025 conveying in favour of the
Petitioner-society the entire land admeasuring 2666.80 sq.mts and the
building.
6) Some of the original land owners filed Writ Petition Nos.
16950 of 2025, 15952 of 2025 and 17855 of 2025 challenging the order
dated 29 September 2025. This Court allowed the Petitions by order
dated 17 March 2026 and set aside the order dated 29 September 2025
granting liberty to the Petitioner to institute separate civil proceedings
in accordance with law. Petitioner has accordingly filed the present
petition challenging the original rejection order dated 28 March 2016.
7) Mr. Godbole, the learned senior advocate appearing for the
Petitioner submits that the Competent Authority has grossly erred in
rejecting Society’s first application for deemed conveyance. He submits
that the reasons recorded for rejecting Society’s first application for
deemed conveyance are clearly unsustainable. That mere existence of
title claims of original land owners cannot be a reason for not conveying
the land in favour of the Petitioner-society. That the land has not been
acquired by the Slum Rehabilitation Authority, nor SRA has assumed the
role of a planning authority. The mere illegality in the construction of
the building by Respondent No. 29–Developer cannot be a ground for
depriving the Petitioner-Society of its title to the land. That the building
is not in a habitable state and needs to be pulled down and
reconstructed.
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8)
Mr. Godbole further submits that the Petitioner is entitled to
challenge the first order of deemed conveyance in view of the liberty
granted by this Court while allowing the Writ Petitions vide order dated
17 March 2026. That the liberty is granted to file appropriate civil
proceedings which would include filing of a Writ Petition challenging the
first order of rejection of deemed conveyance. That this Court has
repeatedly granted liberties to the Societies to challenge earlier orders of
rejection while setting aside subsequent orders of deemed
conveyance/corrigendum. In support, he relies on judgments of this
Court in M/s. Aakanksha Constructions Company Versus. State of
1
Maharashtra and others and B.K. Corporation Versus. State of
2
Maharashtra and others . He submits that even in the judgment in
3
Kashish Park Reality Pvt. Ltd. Versus. State of Maharashtra and others
liberty was granted to challenge the earlier order of deemed conveyance
by the Apex Court in the order dated 9 April 2021. That the societies in
Kashish Park Reality Pvt. Ltd. subsequently challenged the earlier
certificate of deemed conveyance and by judgment in Ganesh Krupa
4
CHSL Versus. State of Maharashtra and others , this Court has partly
allowed the petition of the society. He also relies on judgment of this
5
Court in Shree Rasraj Heights CHSL Versus. Devendra CHSL in
support of his contention that this Court granted liberty to challenge
2017 order of Competent Authority while setting aside the
corrigendum/subsequent order of Competent Authority. That the
affected society filed Special Leave Petition before the Apex Court
1 Writ Petition No.14917/2025 decided on 5 May 2025
Writ Petition No.2453/2018 decided on 9 June 2026
2
Writ Petition (L) No. 93044 of 2020 decided on 11 December 2020
3
4 Writ Petition No.13685 of 2022 decided on 21 April 2026
5 Writ Petition No. 6008 of 2026 decided on 15 July 2026
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challenging the grant of liberty and the Apex Court has dismissed the
Special Leave Petition. That therefore the Petitioner-society is perfectly
justified in challenging the order dated 28 March 2016 by filing the
present petition.
9) Mr. Godbole further submits that the principle of delay and
laches cannot come in the way of this Court entertaining the present
petition as the same is filed in pursuance of specific liberty granted by
this Court on 17 March 2026. Even otherwise, since MOFA violations give
rise to a continuous cause of action, the principles of delay and laches
cannot be invoked so as to deny title in the land in favour of the housing
societies.
10)
Mr. Godbole further places on record a compilation of
documents to demonstrate as to how the proposal for regularization of
Petitioner-society's building has been processed and how the building is
certified to be fit for regularization. He submits that, although the
Petitioner-Society had sought conveyance of the entire land, it would be
content with conveyance of only its proportionate share of the land, i.e.,
land proportionate to the Built-Up Area (BUA) utilised for construction
of its building. He submits that in the File Noting of MCGM dated 12
March 1999, the exact figures of BUA actually utilized in construction of
Petitioner’s building, as well as the total BUA of structures are available.
He submits that the land be divided proportionately and that the
Petitioner-Society be granted land proportionate to the Built-Up Area
utilised for the construction of its building.
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11)
Mr. Rohan Savant, the learned counsel appearing for
Respondent Nos. 30 to 32 has strenuously opposed the Petition
submitting that the same is grossly barred by the principles of delay and
laches. That the Petition is filed after a delay of 10 years. That even a
Writ Petition would normally be rejected if the same is filed beyond the
period specified for filing of a Suit. In support, he relies on judgment of
this Court in Valentine Co-operative Housing Society Ltd. Versus.
6
District Deputy Registrar, Co-operative Societies and Ors. .
12)
Mr. Savant further submits that the order dated 28 March
2016 has attained finality and parties have adjusted and altered their
positions during the past 10 years. That there is absolutely no
explanation for the delay. He relies on judgment of this Court in
Maryland Apartment Co-operative Housing Society Limited Versus.
7
District Deputy Registrar, Co-operative Societies (2) & Ors. .
13) Mr. Savant further submits that the Petitioner has exhibited
dishonest conduct and has not disclosed the material facts. That both the
applications for deemed conveyance filed by the Petitioner claim the
entire area of land suppressing the position that there are several other
structures on the land. That structure of the Petitioner has been
constructed without a valid commencement certificate. That the
structure has not been regularised till date. That documents directly
sought to be tendered during the course of hearing by the Petitioner-
society cannot be taken into consideration. That the disputes between
2026 SCC Online Bom 1833
6
7 Writ Petition No. 13930-2024 dated 24 March 2026.
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the parties involve several complicated questions of fact and law,
including the effect of the Slum Notification, the unauthorised
construction of the Petitioner's structure, and the rights and
entitlements of the landowners and structure owners, which can only be
adjudicated in a Civil Suit. That order dated 17 March 2026 grants liberty
only to file Civil Suit. That judgments of this Court in M/s. Akanksha
Constructions and Kashish Park Realty Pvt. Ltd. are inapplicable as
specific liberties were granted to file Writ Petitions in those cases.
Without prejudice, he submits that even if liberty is granted, the second
proceedings need to be decided in accordance with law by considering all
objections including the objection of delay, laches etc.
14)
Mr. Savant further submits that Respondent No.30 has
acquired rights in the land alongwith the structure admeasuring 150
sq.yard (125.40 sq.mtrs) vide Agreement dated 5 February 1963. That
Respondent No.30 acquired further rights in the land admeasuring 50
sq.yards (41.6 sq.mtrs) vide Indenture of Sale dated 17 August 1973.
That her name has been entered into the Property Register Card vide
mutation dated 1 July 1988. That Respondent No.30 has been issued
Occupiers Card dated 4 July 1978 in respect of her superstructure. That
the land on which Petitioner's building is located belongs to Respondent
No.30. That Respondent No.31 has also acquired right and title in respect
of the land vide consent decree dated 30 January 2019 in Suit No. 727 of
2015. That Respondent No.30 has already filed an application for de-
registration of Petitioner-society, which is pending. Mr. Savant therefore
submits that in the light of serious title disputes relating to the land, the
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Competent Authority is otherwise not a fit forum for deciding the
disputes between the parties. He prays for dismissal of the petition.
15) Mr. D’silva, the learned counsel appearing for Respondent
Nos.3 to 7 also opposes the petition. In addition to adopting the
submissions of Mr. Savant, he submits that the grounds raised in the
petition do not deal with the reasons for rejection in the impugned order.
He submits that the Petition challenging the original rejection order is
not maintainable, particularly when this Court has already granted
liberty to the parties to institute a Civil Suit. He further submits that the
Petition does not disclose any justification for delaying the adjudication
of issues relating to the alleged illegality in the construction of the
building, rival claims of title, the status of the land as a slum area, and
other related disputes. He submits that in exercise of jurisdiction under
Article 227 of the Constitution of India, such disputed questions cannot
be decided. That the correct remedy for the Petitioner is to file a Civil
Suit. He prays for dismissal of the Petition.
16) Mr. Sabrad the learned counsel appearing for Respondent
Nos.2(a), 2(d), 2(e) and 2(f) also opposes the petition submitting that in
the entire Petition, there is absolutely no whisper to explain the
inordinate delay of 10 years in filing the petition. He further submits that
in absence of any pleaded justification, this Court cannot entertain the
present petition. That even an invalid order needs to be challenged
within a reasonable time. That even suit now filed would be barred by
limitation and that therefore the question of entertaining the Writ
Petition does not arise. He submits that his client has title in the land
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and the disputed questions of title can be resolved only by a Civil Court
and not by the Competent Authority. He prays for dismissal of the
petition.
17) Mr. Shaikh, the learned counsel appearing for Respondent
No.8 also opposes the petition by adopting the submissions canvassed by
Mr. Savant, Mr. D’silva and Mr. Sabrad. He prays for dismissal of the
petition.
18)
Rival contentions urged on behalf of the parties now fall for
my consideration.
19)
The building of the Petitioner-society has been constructed
by Respondent No.29 (M/s. National Developers). Respondent No.29 had
apparently secured development rights from persons claiming to be the
land owners and in exercise of those development rights, it has
constructed the structure of the Petitioner. It appears that Respondent
No.29 did not construct the building by securing all the due permissions
from the planning authority. However, it is not that the building is totally
unauthorised and that there is absolutely no building permission. It
appears that the plans for residential building comprising of part ground
+ part stilt + 6 upper floors were approved by the Municipal Corporation
on 29 March 1986. The Commencement Certificate for part of the
building was also issued on 26 May 1986. It appears that the Architect of
the Developer thereafter submitted fresh plans, which were not approved
by the Municipal Corporation. Without ensuring that the revised plans
were approved, Respondent No.29 went ahead and completed
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construction of the building and its Architect submitted building
Completion Certificate on 10 April 1991. The Municipal Corporation
however refused to grant Occupancy Certificate to the building. Thus, the
building of the Petitioner-society is without Occupancy Certificate. The
Municipal Corporation has also issued several notices for demolition of
the building during 1997 to 1999 under Section 53 of the Maharashtra
Regional Town Planning Act, 1966. The building comprises of 38 flats
and 7 shops. Respondent No.29 has sold the flats and the shops to the
purchasers by executing Agreements under Section 4 of MOFA. After
selling the flats and shops, Respondent No.29 apparently did not fulfill
its obligations under MOFA to secure Completion Certificate/Occupancy
Certificate in respect of the building. Resultantly, members of the
Petitioner-society are facing a situation where the structure does not
have Occupancy Certificate.
20) The flat purchasers of the building however came together
and registered a co-operative housing society (Petitioner) on 16 February
1994. Respondent No.29-developer did not even bother to secure
Occupancy Certificate of the building nor completed the further
obligation of conveying his right, title and interest in the land and the
building in favour of the Petitioner-society. Thus Respondent No.29
failed to perfect its title in the land and also failed to convey the same in
favour of the Petitioner-society under Section 11(1) of MOFA.
Respondent No. 29 has now gone missing from the scene.
21)
The Society accordingly approached the Competent
Authority by filing application under Section 11(1) of MOFA for securing
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unilateral deemed conveyance of the entire land and the building in its
favour. The application was opposed primarily by persons claiming rights
and interests in the land. It appears that Respondent No.29 did not
appear before the Competent Authority in Application No. 60 of 2015.
However, persons claiming rights in the land, as well as, the occupiers of
the 11 structures on the land strongly opposed Application No. 60 of
2015, which came to be dismissed by the Competent Authority by order
dated 28 March 2016. As observed above, Petitioner did not challenge the
order dated 28 March 2016. It claims that there were disputes relating to
its management and only after the same got resolved, the society
decided to take steps for securing conveyance. However, instead of
challenging the order dated 28 March 2016, they were advised to
approach the Competent Authority once again and accordingly they filed
a fresh Application No. 197 of 2024 before the Competent Authority once
again seeking conveyance of the entire land and the building in its
favour. Despite the application being opposed by the persons claiming
title in the land, the Competent Authority repelled the said objections
and allowed Application No. 197 of 2024 by order dated 29 September
2025 and issued certificate of unilateral deemed conveyance of the entire
land admeasuring 2666.80 sq.mts. in favour of the Petitioner-society.
22)
When the order dated 29 September 2025 was challenged
before this Court, the same was set aside by this Court vide order dated
17 March 2026. The sole ground for setting aside the order dated 29
September 2025 was that a successive application for deemed
conveyance was not maintainable. This Court held that the first
application of the Petitioner-society was rejected by a reasoned order
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dated 28 March 2016 and therefore it was impermissible to maintain
fresh application. The order dated 17 March 2026 passed by this Court
reads thus:
1. Since all these writ petitions arise from the same background and
raise an identical question of law and fact, it is convenient to consider
them together.
2. For deciding the present controversy, it is not necessary to recount
every factual detail placed on record by the parties. The question is
whether the matter had already been finally decided in earlier
proceedings and therefore cannot be reopened again. For that reason,
only those facts which have direct bearing on this legal question are
being stated here.
3. The petitioners before this Court claim their rights through the
original owners of the property. They have approached this Court as
heirs and legal representatives of those owners. Their case is that the
property in question belonged to their predecessors and that the rights
flowing from such ownership now stand vested in them. Apart from
this, the petitioner in Writ Petition No.17855 of 2025 has placed
reliance on certain consent terms which were recorded in earlier
proceedings. Those consent terms are annexed along with the order
dated 4 July 2016. According to that petitioner, the consent terms
recognise and protect his interest in the property and therefore he
claims entitlement to challenge the present order. Thus the petitioners
assert their locus on the basis of succession as well as contractual
arrangements which have been placed on record.
4. Certain facts are not disputed between the parties. The record shows
that respondent No.1, which is the housing society, had earlier
approached the Competent Authority seeking conferment of unilateral
deemed conveyance. That application was numbered as Application
No.60 of 2015. The Competent Authority considered the said
application and by order dated 28 March 2016 rejected it. The reason for
rejection was clearly recorded. The authority found that the land
bearing CTS Nos.6519 to 6523 had already been acquired by the Slum
Rehabilitation Authority. It was also declared as a slum area. In view of
such declaration and acquisition, the Competent Authority came to the
conclusion that unilateral deemed conveyance in respect of that area
could not be granted. Thus the earlier application was adjudicated upon
and rejected after considering the relevant circumstances.
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5. After the rejection of the earlier application, it appears from the
record that respondent No.1 subsequently filed another application
before the Competent Authority seeking conferment of deemed
conveyance. While filing this subsequent application, the fact that an
earlier application had been rejected was not disclosed before the
authority. The Competent Authority proceeded to consider the fresh
application and ultimately passed the impugned order. It is this order
which has given rise to the present batch of writ petitions. The
petitioners contend that the subsequent application itself could not
have been entertained in view of the earlier rejection and therefore the
impugned order suffers from legal error.
6. Learned advocates appearing for the parties have addressed the Court
mainly on the question whether the doctrine of res judicata would
apply to proceedings under Section 11 of the Maharashtra Ownership
Flats Act, 1960. In support of their submissions, reliance has been
placed upon the decision of the Supreme Court in Faime Makers (P) Ltd.
v. Cooperative Societies, reported in (2025) 5 SCC 772. According to the
learned advocates, the Supreme Court has recognised that the principle
of res judicata applies even to proceedings of this nature. They
submitted that when a matter has been finally decided by a competent
authority on merits, the same issue cannot be reopened by filing
another application. In the present case, according to them, the earlier
order dated 28 March 2016 was a decision on merits. Therefore the
Competent Authority could not have entertained another application
seeking the same relief.
7. On the other hand, the learned advocate appearing for respondent
No.1 opposed these submissions. He argued that the principle of res
judicata would not apply in the present situation. According to him, the
parties involved in the earlier application were different from those in
the present proceedings. It was submitted that the original owner had
subsequently created third party rights in favour of the petitioner in
Writ Petition No.17855 of 2025. Because of this change in the parties, it
was contended that the earlier decision cannot operate as a bar. In
essence, the submission of respondent No.1 is that the presence of new
parties and creation of subsequent rights has altered the nature of the
proceedings and therefore the doctrine of res judicata cannot be
invoked.
8. In reply to these arguments, the learned advocate for the petitioners
clarified the factual position. He pointed out that the agreement to sell
in favour of the petitioner in Writ Petition No.17855 of 2025 was
executed even before the earlier application for deemed conveyance was
rejected. In other words, the rights of the said petitioner had already
come into existence prior to the earlier decision dated 28 March 2016.
Therefore, according to him, the legal position is that the transferee
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steps into the shoes of the transferor. Once such transfer takes place,
the transferee inherits both the rights as well as the liabilities of the
transferor. On this basis it was submitted that merely adding the
petitioner as a party in the later proceedings does not change the legal
position. The earlier decision would still bind the parties claiming
through the original owners.
9. After carefully examining the rival submissions and the material
placed on record, this Court finds substance in the contention raised by
the petitioners. The record clearly shows that the earlier application
filed by respondent No.1 was rejected by a reasoned order dated 28
March 2016. That order was a decision rendered after examining the
status of the land and the legal consequences flowing from its
acquisition by the Slum Rehabilitation Authority. The developer and the
owners were parties to that proceeding. Thus the matter had been
finally adjudicated between the concerned parties.
10. The argument that the principle of res judicata would not apply
because certain agreements to sell were executed earlier cannot be
accepted. When a person derives title from another, he necessarily takes
the property subject to the legal consequences which already exist. The
petitioner in Writ Petition No.17855 of 2025 claims through the original
owners who were parties to the earlier proceeding. Therefore he cannot
assert a position better than that of the persons through whom he
claims. Once the issue regarding grant of deemed conveyance had
already been decided, the same issue could not have been reopened
through another application. The addition of new parties who derive
their rights from the original parties does not remove the binding effect
of the earlier decision. For these reasons, the impugned order cannot be
sustained and it is liable to be quashed and set aside.
11. In view of the above discussion, the rule is made absolute in terms
of prayer clauses (a) and (b) in each of the writ petitions.
12. At the same time, it is necessary to clarify that the present decision
does not take away any independent remedy which may be available to
the petitioner. If the petitioner seeks enforcement of his statutory
rights under Section 11 of the Maharashtra Ownership Flats Act, it will
remain open for him to institute appropriate civil proceedings in
accordance with law. The observations made in this judgment are
confined to the issue which has arisen in the present writ petitions.
23)
Thus, though the order dated 29 September 2025 is set aside
by this Court, it granted liberty to the Petitioner to seek enforcement of
statutory rights under Section 11(1) of MOFA by instituting proper civil
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proceedings in accordance with law. According to the Petitioner, this
Court, by order dated 17 March 2026, has granted it liberty to file a
Petition challenging the initial rejection order dated 28 March 2016.
Accordingly, the Petitioner has filed the present Petition. On the other
hand the contesting Respondents content that the liberty granted by this
Court was only to file a civil suit.
24) Respondent Nos.2 to 8 and 30 to 32 have questioned
maintainability of the present petition, particularly on the ground of
delay and laches. According to them, there is delay of 10 years in
challenging the order dated 28 March 2016 and that the petition
deserves to be dismissed on this ground alone. Alternatively, it is
contended that liberty granted by this Court by order dated 17 March
2026 was only to file a suit and even that liberty needs to be exercised in
accordance with law subject to all objections, including the objection as
to delay and laches. I accordingly proceed to examine the objections
raised by the contesting Respondents.
25) MOFA is a beneficial piece of legislation enacted for the
protection and benefit of flat purchasers, who were recognised by the
Legislature as being vulnerable to the vagaries and malpractices of
unscrupulous developers. One of the well-known mischiefs committed by
the developers is to deny title in the land in favour of the organisation of
flat purchasers and to retain it endlessly with the objective of milking
further and future development potential for the purpose of carrying out
additional construction. Keeping in mind these mischiefs committed by
the developer, the Legislature has consciously amended MOFA in the
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year 2008 and has introduced a remedy of seeking deemed conveyance
from the Competent Authority under Section 11(3) and 11(5) of the Act.
The remedy of unilateral deemed conveyance ensures that organisations
of flat purchasers do not have to undergo lengthy and costly remedy of
filing civil suits for seeking conveyance of land and building from the
Promoter/land owner. The Competent Authority conducts a summary
enquiry and enforces promoter’s obligation under Section 11(1) of MOFA
by issuing a Certificate of unilateral deemed conveyance, which when
registered, vests title in the land and building in favour of the
organisation of flat purchasers.
26) In the present case, Petitioner-society is denied title in the
land as Respondent No. 29-developer committed the mischief of not
conveying his right, title and interest in the land and the building in
favour of the Petitioner. Accordingly, Petitioner-society was required to
approach the Competent Authority under Section 11(3) of MOFA. Its
Application No. 60 of 2015 was however rejected on 28 March 2016 by
the Competent Authority by taking note of objections of persons
claiming title in the land relating to issuance of slum notification,
existence of title disputes and illegalities in construction of the building.
The Petitioner-society ought to have challenged the order dated 28
March 2016 but was erroneously advised to file second application for
deemed conveyance (Application No. 197 of 2024) before the Competent
Authority.
27) It is contended by the contesting Respondents that the
Petitioner acquiesced in the order dated 28 March 2016 by failing to take
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any contemporaneous steps to challenge the same. On the other hand,
the Petitioner-Society has pleaded the following reasons to explain its
inability to challenge the order dated 28 March 2016 at the relevant
time:
6. That as there was a huge mistrust regarding the finance of the society
between the members, the members never made aware of the said
impugned order.
7. That finally when the said financial cheating done by the erstwhile
Chairman and Secretary was brought before the Assistant Registrar, Co-
operative Society H (east), the said Assistant Registrar, Co-operative
Society H (east) passed an order dated 03-10-2016 under section 77A
and removed the erstwhile managing committee and appointed an
administrator being Mrs. Abhilasha Goem as the government appointed
administrator, hereto annexed and marked as Exhibit D is the order
dated 03-10-2016 passed by the Assistant Registrar, Co-operative
Society H (east).
8. Further which the general elections took place in the Petitioner
society and a new committee came to be elected and was appointed as
the new committee by way of an order of the Assistant Registrar, Co-
operative Society H (East) dated 20-02-2018.
9. That in the year 2023 the Petitioner society received many
complaints of seepages of water from the ceiling and walls. On getting
the same checked from experts the Petitioner society was advised either
to get structural repairs done or to go in for redevelopment of the said
building.
10. As redevelopment was a favourable option the Petitioner society
and its members in process of initiated the redevelopment process with
a developer known as M/s Ashi Bliss Homes.
11. On-going through the revenue records the Petitioner society was
made aware that the said and had not been conveyed on to the name of
the Petitioner society and since no previous files or records were
handed over to the present committee members by the erstwhile
committee the Petitioner society was left with no other option but to
apply for Unilateral Deemed Conveyance before the Competent
Authority being the Respondent no. 1.
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12. Thus Petitioner filed an application for Unilateral Deemed
Conveyance before the Competent Authority being the Respondent no.
1 vide an application bearing Application no. 197 of 2024.
28) The Petitioner has thus pleaded the reason of disputes
relating to management of affairs of the Society for its failure to
challenge the order dated 28 March 2016 in a reasonable time. It appears
that immediately after passing of order dated 28 March 2016, an
Administrator was appointed on the society on 3 October 2016. The
elections to the society were thereafter held on 20 February 2018. True it
is that atleast after 20 February 2018, the Petitioner-society ought to
have taken steps for challenging the order dated 28 March 2016. Here,
the Petitioner-society may be accused of slight negligence in not taking
effective steps for challenging order dated 28 March 2016. However, one
must also bear in mind the fact that on account of Covid-19 pandemic
restrictions for almost 2 long years between March 2020 to February
2022, the Petitioner-society may have been incapacitated in taking
effective steps for seeking conveyance of the land and the building.
Though this reason is not specifically pleaded, the Court would be
justified in taking judicial note of the orders passed by the Apex Court
excluding the period of limitation from 15 March 2020 to 28 February
2022. Petitioner-society has also pleaded the reason of necessity to carry
out structural repairs in the building in the year 2023.
29)
It must also be borne in mind that the usual principles of
delay and laches cannot be made strictly applicable in respect of the
right of organisation of flat purchasers to secure conveyance of the land
and the building. The combined reading of Section 11 of MOFA, read
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with Rule 9 of the MOFA Rules, indicates that the obligation to execute
conveyance of the land and building arises upon the expiry of four
months from the formation of the society, company or association of flat
purchasers. However, it does not mean that the Legislature has
contemplated any particular period for the society to apply for deemed
conveyance from the date on which the obligation triggers. The
application for deemed conveyance cannot be rejected on the ground
that the same is filed after several years of triggering of the obligation.
This is because MOFA obligations give rise to continuous cause of action.
The Apex Court in Samruddhi Coop. Housing Society Ltd. v. Mumbai
8
Mahalaxmi Construction (P) Ltd as well as this Court in Sushama
9
Tulsidas Adhav vs. Pradeep D. Shah and Ors have held that violation of
MOFA obligations gives rise to continuous cause of action. In Satellite
Garden I Cooperative Housing Society Ltd. Versus. The State of
10
Maharashtra and others, this Court has taken note of ratio of
judgment of the Apex Court in Samruddhi Coop. Housing Society Ltd.
and of this Court in Sushama Tulsidas Adhav and has held in paragraphs
179 to 181 as under:
179) To answer the conundrum involved in the Petitions, it needs to be
examined as to whether it is necessary for a society to apply for
conveyance within any fixed time? MOFA obligations give rise to
continuous cause of action. The statutory right under Section 11 of
MOFA to seek conveyance does not have any prescribed period of
limitation for exercise of remedy. The right of organisation of flat
purchasers to secure conveyance does not get extinguished on account
of expiry of any particular period of limitation. In Samruddhi Coop.
Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd , the
Apex Court has held that MOFA obligations give rise to a continuous
cause of action. It is held thus:
2022 (4) SCC 103
8
9 2024 SCC Online Bom 4325
10 WRIT PETITION NO.1128 OF 2026 decided 16.09.2026
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20. Sections 3 and 6 of the MOFA indicate that the promoter has
an obligation to provide the occupancy certificate to the flat
owners. Apart from this, the promoter must make payments of
outgoings such as ground rent, municipal taxes, water charges
and electricity charges till the time the property is transferred to
the flat owners. Where the promoter fails to pay such charges,
the promoter is liable even after the transfer of property.
21. Based on these provisions, it is evident that there was an
obligation on the respondent to provide the occupancy
certificate and pay for the relevant charges till the certificate has
been provided. The respondent has time and again failed to
provide the occupancy certificate to the appellant Society. For
this reason, a complaint was instituted in 1998 by the appellant
against the respondent. Ncdrc on 20-8-2014 directed the
respondent to obtain the certificate within a period of four
months. Further, Ncdrc also imposed a penalty for any delay in
obtaining the occupancy certificate beyond these 4 months.
Since 2014 till date, the respondent has failed to provide the
occupancy certificate. Owing to the failure of the respondent to
obtain the certificate, there has been a direct impact on the
members of the appellant in terms of the payment of higher
taxes and water charges to the municipal authority. This
continuous failure to obtain an occupancy certificate is a breach
of the obligations imposed on the respondent under the MOFA
and amounts to a continuing wrong. The appellants, therefore,
are entitled to damages arising out of this continuing wrong and
their complaint is not barred by limitation.
22.NCDRC in its impugned order has held [Samruddhi Coop.
Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P)
Ltd., 2018 SCC OnLine NCDRC 1711] that the cause of action
arose when the municipal authorities ordered the payment of
higher taxes in the first instance. Further, the impugned order
[Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi
Construction (P) Ltd., 2018 SCC OnLine NCDRC 1711] also states
that the present complaint is barred by limitation as there is no
prayer for supply of occupancy certificate. We are unable to
subscribe to the view of Ncdrc on both counts. Undoubtedly, the
continuing wrong in the present case is the failure to obtain the
occupancy certificate. Against this act of the respondent, the
appellant Society has taken appropriate action by filing a
complaint before the consumer forum. The appellant is
currently pursuing the execution of the order of Scdrc arising
from that complaint. However, that itself does not preclude it
from claiming compensation for the consequences which have
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arisen out of this continuing wrong. The failure to obtain the
occupancy certificate has resulted in the levy of higher taxes on
the members of the appellant Society repeatedly by the
municipal authorities. Despite the order of 20-8-2014, the
respondent has failed to obtain the occupancy certificate. This
has resulted in a situation where the appellant, despite having
followed the correct course of litigation in demanding the
furnishing of an occupancy certificate, will continue to suffer the
injury inflicted by the respondent merely due to the delay in the
execution of the order against the respondent. Rejecting the
complaint as being barred by limitation, when the demand for
higher taxes is made repeatedly due to the lack of an occupancy
certificate, is a narrow view which is not in consonance with the
welfare objective of the Consumer Protection Act, 1986.
(emphasis added)
180) This Court in Sushama Tulsidas Adhav vs. Pradeep D. Shah and
Ors ., has held that breach of statutory obligations under MOFA gives
rise to a continuous cause of action. It is held in paras 36 to 38 as
under:
36. In the instant case the Plaintiff seeks enforcement of the
statutory obligations imposed by Section 3 and 4 of MOFA.
Under Section 4 of MOFA the agreement with the flat purchaser
is required to be in prescribed form i.e. Form V prescribed by
Rule 5 of MOFA Rules. It may be noted that, in that prescribed
form, there is an explanatory note which inter alia states that
certain clauses shall be statutory and shall be retained. Note 1
clarifies that a model form of agreement has been prescribed
which could be modified and adapted in each case depending
upon the facts and circumstances of each case but, in any event,
certain clauses including clauses 9 and 22 shall be treated as
statutory and mandatory and shall be retained in each and every
individual agreements between the promoter and the flat taker.
Clause 9 provides for the agreement to specify the date on which
the possession of the flat shall be given to the flat purchaser and
on demand by the flat purchasers to refund the amount already
received along with interest. Clause 22 provides that the flat
purchasers agreement to be presented for registration within
the time limit prescribed by the Registration Act and imposes
obligation on the Promoter to attend the office and admit
execution thereof.
37. The Plaintiff was thus seeking enforcement of Clause 9 and
22 of the Model Agreement which are non derogable and
constitutes continuing wrong till the obligations are complied
with. The reliance placed by Mr. Joshi on Clause 7 of the Model
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Agreement pertaining to termination is mis placed as Clause 7
does not find mention as being statutory and mandatory in the
Note 1 to the Model Agreement. Coming to the agreement dated
1st February, 2001 executed between the parties in respect of
Shop No. 4, there is no termination clause in the said agreement
and it appears that the absence of termination clause is for the
reason that the total consideration agreed was Rs. 10,03,460/-
out of which the plaint pleads payment of Rs. 9,10,000/- which
amounts to substantial payment.
38. The Defendant No. 1 has admittedly neither registered the
agreement executed between the parties nor specified the date
on which possession is to be handed over and has not handed
over possession which amounts to a continuous breach of
obligations imposed by MOFA and is thus a continuing wrong.
181) Since MOFA obligations give rise to a continuous cause of action,
merely because a society does not apply for deemed conveyance
immediately after expiry of period prescribed under Rule 9 of MOF
Rules, such inaction does not mean that its right to secure conveyance
of the land gets extinguished. The right to have conveyance of the
proportionate land, as frozen/crystallised upon expiry of period of 4
months prescribed in Rule 9, can be exercised at any point of time.
What needs to be conveyed when right to seek conveyance accrues must
also be conveyed when the application/suit is filed for conveyance after
expiry of few years. Therefore, mere delay in applying for deemed
conveyance or in filing a suit for conveyance would not mean that the
frozen/crystallised land entitlement would get reduced with passage of
time. The land entitlement gets frozen/crystallised for all times to come
and the remedy for its enforcement can be exercised at any time.
Additional construction put up by violating the disclosures and in
contravention of provisions of Section 7 of MOFA during the time the
first society does not apply for conveyance does not result in automatic
reduction of its land entitlement.
30)
Thus, mere delay does not defeat the right of a housing
society to secure title in the land. This is principally because MOFA is a
beneficial piece of legislation enacted to protect the interests of flat
purchasers. Further, the right of the organisation of flat purchasers to
seek conveyance of the land and building is not merely a contractual
right that is required to be exercised within any prescribed period of
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limitation. It is also a statutory right which remains valid till the land
and the building is finally conveyed. In my view, therefore, it would not
be appropriate to apply rigid principles of limitation, delay and laches, so
as to negate the right of a society to secure conveyance of land and the
building. What needs to be borne in mind is the fact that if remedy to
seek conveyance is denied by applying rigid principles of limitation,
delay and laches, organization of flat purchasers would remain without
any title in the land and the beneficiaries would be the developer and the
original land owner who have already milked the development potential
by constructing the buildings and selling the flats. If the remedy for
conveyance is not permitted to be exercised, the organization of flat
purchasers would not be able to undertake redevelopment of the
building and the earlier promoter, as well as the land owners, would have
a stake in the redevelopment process and would seek to earn further
profits from the land even though they have milked the entire
development potential in the land at one point of time. It must also be
borne in mind that when the home buyer purchases a flat, he/she does
not purchase just a superstructure, but also proportionate share in the
land. His/her proportionate share in the land ultimately gets conveyed in
the name of organization of flat purchasers. With sale of each flat in the
building, title of the promoter and the land owner gets diluted. Once all
flats in the building are sold, the promoter and the land owner gets
completely divested of the title in the land. What remains is mere
obligation to execute an instrument which would vest such lost title in
favour of the organization of flat purchasers. When promoter/land owner
fails to perform that obligation, the Competent Authority steps in their
shoes and performs that obligation. Thus, what is effectively undertaken
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by the Competent Authority under Section 11(3) of MOFA is merely the
performance of the obligation to execute an instrument of transfer on
behalf of the promoter/landowner, who has already divested himself of
title in the land. In such circumstances, if organization of flat purchasers
is denied an opportunity to exercise remedy to secure conveyance, the
errant promoter/land owner would reclaim the lost interest in the land.
This is not the legislative objective and such kind of situation can always
not be countenanced in the Court of law by applying rigid principles of
limitation, delay or laches. If the remedy of ogranisation of flat
purchasers to secure title in the land is denied, the ultimate beneficiary
would be the errant promoter or the land owner who would continue to
claim title in the land.
31)
In my view therefore, it would not be appropriate to deny
opportunity to the Petitioner-society to exercise remedy to secure title in
the land merely because it did not act with necessary alacrity to
challenge the order dated 28 March 2016. Therefore even though there
may be some negligence on the part of the Petitioner-society in not
taking contemporaneous steps in challenging the order dated 28 March
2016, it would be inappropriate to shut the doors of this Court on the
Petitioner-society, as doing so would result in disastrous consequences
where the original land owners, who have already milked the entire
potential in the proportionate land would continue to claim title in the
land and flat purchasers will not be able to redevelop their own building.
32)
In view of the above discussion, I am not inclined to accept
the contention raised by the contesting Respondents that the Petition
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cannot be entertained by applying the principles of limitation, delay or
laches.
33) The judgment of coordinate Bench of this Court in
Valentine CHSL strenuously relied upon by Mr. Savant is distinguishable
on facts. In that case, there were competing claims between two societies
about sharing of the layout land. Respondent No.16-society had applied
for conveyance before the Competent Authority in the year 2014. The
application was opposed by the Petitioner-society who was Opponent
No.10 in Application No. 169 of 2014 filed by Respondent No.16-society.
Repelling the objection raised by the Petitioner-society, the Competent
Authority by order dated 27 May 2016 issued certificate of unilateral
deemed conveyance in favour of Respondent No.16-society which finally
culminated into registered instrument of deemed conveyance dated 23
January 2020. The Petitioner-society thereafter filed its own application
for unilateral deemed conveyance before the Competent Authority. By
order dated 14 September 2023, the Competent Authority rejected the
claim of the Petitioner for conveyance of land admeasuring 917.56 sq.mts
in addition to certain undivided rights in the layout land essentially on
the ground that deemed conveyance of land admeasuring 1500.14 sq.mts
was already granted in favour of Respondent No.16-society and the
Competent Authority accordingly proceeded to grant conveyance of land
admeasuring only 819.26 sq.mts. After the Petitioner-society realized
that the certificate earlier granted on 27 May 2016 in favour of
Respondent No.16-society conveying land admeasuring 1500.14 sq.mts,
was coming in its way to secure conveyance of land admeasuring 917.56
sq.mts, it sought to challenge the order dated 27 May 2016 passed in
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favour of Respondent No.16-society by filing a petition in the year 2025.
It is in these peculiar facts of the case in Valentine CHSL (supra), that
the coordinate bench of this Court has held in paragraphs 11, 12, 14, 15,
16 and 19 of the judgment as under:
11. At the outset, it is necessary to note that the petitioner was a party
to Application No.169/2014 and did contest the same. The order of
Deemed Conveyance dated 27th May, 2016 passed therein was
admittedly not assailed by the petitioner either by instituting the
petition before this Court or by filing a suit, till the petitioner preferred
an application for Deemed Conveyance in the year 2023. A period of
more than seven years elapsed between the date of the granting
certificate of entitlement for Unilateral Deemed Conveyance and the
filing of the application before the Competent Authority by the
petitioner. The said Application No.66/2023 filed by the petitioner was
allowed by the Competent Authority on 14th September, 2023. Yet, the
instant petition came to be filed before this Court in the month of
February, 2025, assailing both the orders. There is indeed delay in
assailing the order granting a certificate of Unilateral Deemed
Conveyance in favour of respondent No.16. By any standard, the delay
of nine years is inordinate.
12. It is trite the exercise of writ jurisdiction is discretionary. Though
there is no prescribed period of limitation for filing a writ petition, if
the petition suffers from delay and laches and no explanation is
forthcoming, the Writ Court would be justified in declining to entertain
the petition. A party who seeks relief from the Writ Court in exercise of
its extraordinary jurisdiction is expected to approach the Court with
reasonable dispatch. Undoubtedly, the reasonableness of time is a
relative concept and hinges upon the facts and circumstances of the
given case and the explanation offered for not approaching the Court at
an earlier point in time.
14. In the case of Mrinmoy Maity vs. Chhanda Koley and others 4 , the
Supreme Court delineated the approach to be adopted by the Writ Court
when its jurisdiction is invoked belatedly. The observations in
paragraphs 9 to 11 read as under:
“9. ……. An applicant who approaches the court belatedly or in
other words sleeps over his rights for a considerable period of
time, wakes up from his deep slumber ought not to be granted
the extraordinary relief by the writ courts. This Court time and
again has held that delay defeats equity. Delay or latches is one
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of the factors which should be born in mind by the High Court
while exercising discretionary powers under Article 226 of the
Constitution of India. In a given case, the High Court may refuse
to invoke its extraordinary powers if laxity on the part of the
applicant to assert his right has allowed the cause of action to
drift away and attempts are made subsequently to rekindle the
lapsed cause of action.
10. The discretion to be exercised would be with care and
caution. If the delay which has occasioned in approaching the
writ court is explained which would appeal to the conscience of
the court, in such circumstances it cannot be gainsaid by the
contesting party that for all times to come the delay is not to be
condoned. There may be myriad circumstances which gives rise
to the invoking of the extraordinary jurisdiction and it all
depends on facts and circumstances of each case, same cannot
be described in a straight jacket formula with mathematical
precision. The ultimate discretion to be exercised by the writ
court depends upon the facts that it has to travel or the terrain
in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed
period of limitation is prescribed. However, when the
extraordinary jurisdiction of the writ court is invoked, it has to
be seen as to whether within a reasonable time same has been
invoked and even submitting of memorials would not revive the
dead cause of action or resurrect the cause of action which has
had a natural death. In such circumstances on the ground of
delay and latches alone, the appeal ought to be dismissed or the
applicant ought to be non-suited. If it is found that the writ
petitioner is guilty of delay and latches, the High Court ought to
dismiss the petition on that sole ground itself, in as much as the
writ courts are not to indulge in permitting such indolent
litigant to take advantage of his own wrong. It is true that there
cannot be any waiver of fundamental right but while exercising
discretionary jurisdiction under Article 226, the High Court will
have to necessarily take into consideration the delay and latches
on the part of the applicant in approaching a writ court. This
Court in the case of Tridip Kumar Dingal and others v. State of
W.B and others., (2009) 1 SCC 768 has held to the following
effect:
“56. We are unable to uphold the contention. It is no doubt true
that there can be no waiver of fundamental right. But while
exercising discretionary jurisdiction under Articles 32, 226, 227
or 136 of the Constitution, this Court takes into account certain
factors and one of such considerations is delay and laches on the
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part of the applicant in approaching a writ court. It is well
settled that power to issue a writ is discretionary. One of the
grounds for refusing reliefs under Article 32 or 226 of the
Constitution is that the petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a writ court,
he should come to the Court at the earliest reasonably possible
opportunity. Inordinate delay in making the motion for a writ
will indeed be a good ground for refusing to exercise such
discretionary jurisdiction. The underlying object of this
principle is not to encourage agitation of stale claims and
exhume matters which have already been disposed of or settled
or where the rights of third parties have accrued in the
meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 :
(1964) 6 SCR 261] , Moon Mills Ltd. v. Industrial Court [AIR 1967
SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :
(1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies
even in case of an infringement of fundamental right (vide
Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga
Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC
185] and Rabindranath Bose v. Union of India [(1970) 1 SCC
84] ).
58. There is no upper limit and there is no lower limit as to when
a person can approach a court. The question is one of discretion
and has to be decided on the basis of facts before the court
depending on and varying from
15. In the case of Rikhab Chand Jain vs. Union of India and others 5 ,
the Supreme Court exposited as to what would constitute reasonable
period, especially when there is an alternate remedy which is required
to be exhausted within a prescribed period of limitation. The
observations in paragraph 13 read as under:
“13. Although there is no period of limitation for invoking the
writ jurisdiction of a High Court under Article 226, all that the
courts insist is invocation of its jurisdiction with utmost
expedition and, at any rate, within a “reasonable period”. What
would constitute “reasonable period” cannot be put in a
straight-jacket, and it must invariably depend on the facts and
circumstances of each particular case. Nonetheless, the period of
limitation prescribed by an enactment for availing the
alternative remedy provided thereunder in certain cases does
provide indication as to what should be the “reasonable period”
within which the writ jurisdiction has to be invoked.”
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16. The decision in the case of Rikhab Chand Jain (supra) assumes
importance in the facts of the case as pursuant to the grant of a
certificate of Unilateral Deemed Conveyance, the Deed of Conveyance
came to be executed and registered in favour of respondent No.16, on
23rd January, 2020. If the petitioner was to assail the legality and
validity of the order granting certificate of Unilateral Deemed
Conveyance dated 27th May, 2016 and Deed of Conveyance dated 23rd
January, 2020, before the Civil Court, the period of limitation would be
three years from the date the right to sue first accrued.
19. I am, thus, inclined to hold that, on the ground of delay and laches
itself, the petition does not deserve to be entertained.
34) In my view, the ratio of the judgment in Valentine
CHSL is clearly distinguishable. In that case, Petitioner-society had
opposed grant of conveyance of land admeasuring 1500.14 sq.mts in
favour of Respondent No.16-society and its objection was rejected. It did
not challenge that order and instead applied for unilateral deemed
conveyance in its own name only after realizing that it cannot secure
conveyance of land admeasuring 917.56 sq.mts on account of conveyance
of land admeasuring 1500.14 sq.mts in favour of Respondent No.16-
society. Thereafter it sought to challenge the 2016 order passed in favour
of Respondent No.16-society. Therefore, the judgment in Valentine
CHSL is clearly distinguishable and would have no application to the
peculiar facts of the present case where Petitioner-society is specifically
granted liberty by this Court to secure remedy for enforcement of rights
under Section 11 of MOFA while setting aside the subsequent order of
deemed conveyance dated 29 September 2025.
35)
Mr. Savant has also strenuously relied upon judgment of
this Court in Maryland Apartment CHSL. In that case, two writ
petitions were filed by the Petitioner-society. Its earlier application for
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deemed conveyance was rejected by order dated 31 October 2014. Instead
of challenging that order, the society filed fresh application for deemed
conveyance which was dismissed by applying the principles of res-
judicata by order dated 18 October 2023. The society filed two petitions
challenging the orders dated 31 October 2014 and 18 October 2023. In
the peculiar facts of that case, this Court held in paragraphs 15 to 27 of
the judgment as under:
15. I have heard the learned Senior Advocates for the parties and have
carefully gone through the record. The controversy is narrow in form,
but the consequences are wide. The petitioner seeks unilateral deemed
conveyance in respect of the land and building. The respondents resist
the claim by pointing out the long delay in challenging the first
rejection, the finality of the earlier order, and the nature of the disputes
already pending between the parties. After considering the matter in
full, I find that Writ Petition No. 13930 of 2024 must fail on the ground
of laches, and Writ Petition No. 13935 of 2024 must fail on the ground
of res judicata. The petitioner, however, shall have liberty to pursue its
remedy before the competent civil court, if so advised, in accordance
with law.
16. According to the petitioner, the building in which the members are
residing is constructed only on Portion “A” of the larger property. It is
further pointed out that the order dated 28 November 1995, passed in
the civil suit, was not for the entire land but was limited only to Portion
“B”. From this, the petitioner argues that the Competent Authority
made a mistake when it rejected the application on 31 October 2014 by
treating the injunction as if it covered the whole property.
17. In facts of the case, the Court has to examine the conduct of the
petitioner. whether the petitioner approached the Court within a
reasonable time, and whether after an order has become final, the same
issue can again be brought before the authority by filing another
application. These aspects cannot be ignored, even if some merit is
found in the petitioner’s submission.
18. Coming to Writ Petition No. 13930 of 2024, the position becomes
more clear. The petitioner is challenging an order which was passed on
31 October 2014 in Application No. 312 of 2013. That order remained
unchallenged for almost ten years. During this long period, the
petitioner did not take any steps to question it. It is difficult to accept
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that the petitioner had no knowledge about the rejection, because the
order was passed in its own application. There is also no material to
show that the petitioner was prevented by any sufficient cause or legal
difficulty from approaching the Court earlier. The explanation now
given is that only later the petitioner obtained copies of the suit papers
and then understood that the injunction was only for Portion “B”. Even
if this explanation is taken at face value, it still leaves a gap. It does not
explain why the petitioner remained inactive for such a long duration. A
person who claims a statutory right is expected to act with some
urgency. Waiting for years together and then approaching the Court
disturbs the balance, because the other side proceeds on the footing
that the matter has attained finality.
19. The principle of laches, in this context, is not some rigid or technical
rule. If a party allows an order to remain unchallenged for years, and
during that time the other side adjusts its position on the basis of that
order, then it would be unfair to reopen the issue after a long delay.
Courts, therefore, expect that a person must come within a reasonable
time. In the present case, the petitioner had the rejection order since
2014. It did not challenge it. Instead, it chose to file another application
in the year 2023. That later step cannot wipe out the earlier inaction.
The delay is too long and not properly explained. Therefore, the present
challenge to the 2014 order is clearly belated. It falls within the
mischief of delay and laches.
20. The petitioner has also tried to argue that the earlier order was
based on misrepresentation, as the true scope of the injunction was not
properly brought on record. But even this argument does not improve
the situation. Even if the petitioner later came to know certain facts in a
better manner, that by itself cannot revive a challenge which had
become stale over time. The law does not favour a party who first
accepts an order by remaining silent, then takes a second chance by
filing a fresh application, and only after failing there, comes back to
challenge the old order. Such conduct shows lack of diligence. It
weakens the claim for relief under Article 226, which is always
discretionary in nature. For these reasons, this Court is of the clear view
that Writ Petition No. 13930 of 2024 cannot be entertained and
deserves to be dismissed on the ground of laches alone.
21. The position in Writ Petition No.13935 of 2024 appears slightly
different on the surface, but when it is examined carefully, it is in
substance the same as the earlier situation. Here, the petitioner again
approached the Competent Authority by filing Application No. 54 of
2023. In that application, the relief which was claimed was essentially
the same as what was earlier asked in Application No. 312 of 2013. The
prayer was again for unilateral deemed conveyance of the same land
and building. The foundation of the claim did not change in any
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meaningful manner. The parties involved also remained the same in
substance. Therefore, even though the application number and the year
were different, the core dispute continued to be identical.
22. Once an application on the same issue has been decided, and that
decision has reached finality because it was not challenged in time, the
law does not permit the same party to come again before the same
authority and ask for the same relief on the same set of facts. If such a
course is allowed, there will be no end to litigation. A party can keep
filing repeated applications until it gets a favourable order. That is not
how the legal system works. Finality of decisions is an important part of
justice. It gives certainty and stability to legal relations. In the present
case, after the order dated 31 October 2014 was passed, the matter
stood concluded at that level. The petitioner could not have bypassed
that position by simply filing a fresh application in the year 2023.
23. In Faime Makers Private Ltd. v. District Deputy Registrar, (2025) 5
SCC 772 the Supreme Court in the context of applicability of Section 11
of CPC to MOFA proceedings under Section 11 has reiterated two
important points. First, findings of a quasi judicial body cannot be
reopened in a collateral manner or in a second round between the same
parties. Second, even if the earlier decision contains an error of fact or
law, it still binds unless it is set aside by a higher forum. A coordinate or
successor authority cannot simply take a different view on the same
issue. In the present case, these conditions are clearly satisfied. The
earlier application was decided. The relief of deemed conveyance was
refused. The petitioner did not challenge that decision in time.
Therefore, the same issue cannot be raised again in another
application.

24. When the petitioner filed Application No. 54 of 2023, it was, in
effect, trying to reopen the same controversy which had already been
concluded in 2014. This is not permissible in law. The bar meant to
prevent repeated and unnecessary litigation. Filing a second application
on the same facts is not an acceptable substitute. Therefore, the second
application itself was not maintainable. Once that is so, the order dated
18 October 2023, by which the Competent Authority rejected
Application No. 54 of 2023, cannot be said to be incorrect on this
ground. The authority could not have ignored the earlier final order and
proceeded to grant the same relief again. Doing so would have resulted
in conflicting decisions on the same issue. Hence, the rejection of the
second application does not call for interference.
25. Learned Senior Advocate for the petitioner has strongly argued that
the earlier rejection order was based on a wrong understanding of the
injunction order passed in the civil suit, and therefore such an order
should not bind the petitioner at all. This submission, if it had been
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raised at the proper time, would have required serious consideration.
Because if an authority proceeds on a misunderstanding of a court
order, then such an error can affect the entire decision. However, the
difficulty for the petitioner is not only about correctness of the earlier
order, but about the manner in which the petitioner has acted
thereafter. Once the order dated 31 October 2014 was passed, the
petitioner allowed it to remain unchallenged for many years. During
this long period, the order gained finality. In such a situation, the
petitioner cannot avoid the effect of that order by simply filing another
application and asking the authority to reconsider the same issue again.
Law does not permit such indirect method.
26. At the same time, it is necessary to observe that the petitioner’s
grievance is not entirely without substance. The dispute between the
parties involves questions about the larger property, the nature of the
lease, the internal arrangements between the parties, the development
rights, and also the exact effect of the injunction order passed in the
civil suit. These are not issues which can be decided only on the basis of
limited material placed before the Competent Authority. Such questions
may require detailed evidence, examination of documents, and proper
trial. Proceedings under the MOFA are summary in nature and are not
always suitable for deciding complicated questions of title and
competing rights between several parties. Therefore, while rejecting the
present writ petitions, it cannot be said that the petitioner has no
remedy at all.
27. For this reason, the dismissal of these writ petitions should be
understood in its proper context. The petitioner is not denied relief
because its claim is wholly untenable. The petitions are dismissed
because of the manner in which the remedies have been pursued. The
first writ petition fails because there is long and unexplained delay in
challenging the earlier order. The second writ petition fails because the
same issue had already been finally decided and cannot be reopened by
filing a fresh application. If the petitioner still believes that it has a
valid claim in law, the proper course is to approach the civil court,
where all issues relating to title, rights and obligations can be examined
in detail.
36)
In my view, the ratio of the judgment in Maryland
Apartment CHSL would have no application to the peculiar facts of the
present case. Here there is no question of opposing parties adjusting
their positions after passing of order dated 28 March 2016. Furthermore,
in Maryland Apartment CHSL, this Court has highlighted various
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complicated issues relating to nature of lease, internal arrangement
between the parties, development rights, exact effect of injunction order
etc. in para-26 of the judgment and held that those issues can be decided
only by Civil Court and not by the Competent Authority. This is not the
case here. The present case does not involve complicated issues as was
the case in Maryland Apartment CHSL . The present case merely
involves the issue of proportionate land division between the owners of
the structure/balance land and the Petitioner-society by taking into
consideration the BUA utilized in construction of each of the structures.
The judgment in Maryland Apartment CHSL is thus clearly
distinguishable and would have no application to the peculiar facts of
the present case.
37)
In my view therefore, it would not be appropriate to dismiss
the present petition on the grounds of delay and laches. Even otherwise,
the jurisdiction of this Court is invoked under Article 227 of the
Constitution of India, which is not circumscribed by the principles of
limitation. It is only where laches on the part of the Petitioner are gross
that this Court may decline to exercise its extraordinary jurisdiction. In
the facts and circumstances of the present case, exercise of extraordinary
jurisdiction is clearly warranted so as to ensure conveyance of
proportionate share in the land in favour of the Petitioner society and to
prevent the contesting Respondents from claiming ownership of rights in
the land conveyable to the society.
38)
Having held that the petition need not be dismissed on the
ground of delay or laches, the next issue for consideration is whether
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filing of the present petition can be treated as a remedy exercisable in
terms of liberty granted by this Court in paragraph 12 of the order dated
17 March 2026. This Court has clearly underscored the right of the
Petitioner to enforce statutory rights under Section 11 of MOFA. Under
Section 11(1), it is statutory duty of the promoter to convey his right,
title and interest in the land and the building in favour of the
organization of flat purchasers. Upon failure to perform the statutory
obligation under Section 11(1), the concerned organization of flat
purchasers can approach the Competent Authority under Section 11(3)
of MOFA to seek enforcement of such statutory obligation. Thus, filing of
the application under Section 11(3) of MOFA is a remedy available to a
society for seeking enforcement of statutory obligations. In the present
case, this Court has granted liberty to the Petitioner-society to institute
‘ appropriate civil proceedings ’ and such civil proceedings are to be
instituted ‘ in accordance with law ’. Since the remedy under Section 11(3)
of MOFA to approach the Competent Authority is also a civil remedy
exercisable in accordance with law, I find no difficulty in holding the
present Petition as maintainable.
39) It is contended by contesting Respondents that the remedy
envisaged in the order dated 17 March 2026 is only to file a Civil Suit and
not a remedy to challenge the previous order dated 28 March 2016. I am
unable to agree. The present case does not involve a scenario where this
Court has held that it is impermissible for the Competent Authority to
adjudicate the complicated questions of law or fact in the summary
inquiry and that therefore a Suit before the Civil Court needs to be filed.
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40)
It is also seen that whenever a housing society commits a
mistake in filing successive applications for deemed conveyance or seeks
a corrigendum for conveyance of higher area, this Court, while setting
aside the orders passed in a subsequent applications or corrigenda, has
consistently granted liberty to challenge the earlier order passed by the
Competent Authority either rejecting the application or granting lesser
area. Reference in this regard can be made to the judgment of this Court
in Aakanksha Constructions Co. (supra) in which while setting aside the
order passed by the Competent Authority, this Court granted liberty to
challenge the earlier order dated 5 August 2021. Paragraphs 42 and 43 of
the judgment in Aakanksha Constructions Co. read thus:
42) Having held that the impugned order passed by the Competent
Authority on 14 November 2024 is unsustainable, the next issue is
about the remedy open to Torna CHS in respect of its statutory right of
conveyance of land. As observed above, the society ought to have
challenged the Order dared 5 August 2021, if it believed that the same is
erroneous rather than filing a fresh application for deemed conveyance.
Torna CHS had filed suit seeking conveyance of land, which has been
withdrawn on account of filing of third application for deemed
conveyance. Therefore, if liberty is not granted to Torna CHS to
challenge the order dated 5 August 2021, it would be rendered
remediless in respect of its right of having the land conveyed in its
favour. Therefore, while setting aside the impugned order dated 14
November 2024, the society deserves to be granted liberty to challenge
the order dated 5 August 2021. Society’s second application for deemed
conveyance is not adjudicated on merits and the decision of the
competent authority refusing to adjudicate the same on merits must be
permitted to be challenged by the Society. There is a statutory right in
favour of Torna CHS to apply for deemed conveyance of the land and
the building. The Competent Authority has however held in the second
rejection order dated 5 August 2021 that it cannot adjudicate Society’s
application on merits in the light of pendency of litigation between
various parties. Whether the said decision of the Competent Authority
is valid or nor must necessarily be permitted to be tested by the Society.
In my view therefore liberty needs to be granted to Torna CHS to
challenge the order dated 5 August 2021.
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43) The petitions accordingly succeed, and I proceed to pass the
following order:
(i) Order dated 14 November 2024 passed by the Competent
Authority in Application No.193/2024 is set aside.
(ii) Torna CHS would however be at liberty to challenge
order dated 5 August 2021 passed by the Competent Authority
and such challenge would be decided on its own merits. All
rights and contentions of parties on merits are expressly left
open.
41)
The judgment of this Court in Aakanksha Constructions
Co. has been followed in B.K. Corporation (supra) in which it is held in
paragraphs 47 and 48 of the judgment as under:
47. However, like in Aakansha Construction (supra), this Court is also at
pains to set aside an order granting deemed conveyance in favour of an
association formed by home buyers. MOFA is a beneficial legislation
which has been enacted (and amended, from time to time) to prevent
the mischief where Promoters and Developers were deliberately not
conveying land in favour of the association of home buyers, even after
exploitation of the rights in the land under the greed of further FSI
being made available. MOFA is intended to protect the interests of
home buyers and hence, courts have always been slow in interfering
with orders granting deemed conveyance in favour of co-operative
housing societies of home buyers. The Competent Authority is a
Tribunal of limited jurisdiction, which adjudicates the application of a
co-operative housing society for conveyance of land and building after
hearing the Promoter and in some cases, even Owners. A summary and
speedy remedy is made available to co-operative housing societies to
have land and building conveyed in their names. The Competent
Authority is therefore required to exercise jurisdiction under Section 11
of MOFA by keeping in mind the legislative objective and any
complicated issue sought to be raised by Promoters (or in some cases
like the present one, another co-operative housing society situated in
the same layout, namely, Noble House CHSL) can be left to be agitated
before Civil Courts, as such parties always have the liberty of filing a
suit for asserting their rights in the land.
48. Having held that the impugned order dated 31 st May 2017 passed
by the Competent Authority is unsustainable, the issue which stares me
in the face is about the remedy open to Apeksha CHS in respect of its
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statutory right of conveyance of the land and building. As observed
above, Apeksha CHSL ought to have challenged the earlier order dated
4th August 2016, if it believed that the same is erroneous rather than
filing the second application for deemed conveyance. Suit No. 1481 of
2012 filed by Noble House CHSL still remains pending before the
Bombay City Civil Court at Dindoshi despite it being filed almost 15
years ago. Therefore, if liberty is not granted to Apeksha CHSL to
challenge the said order dated 4th August 2016, it would be rendered
remediless in respect of its right of having the land and building
conveyed in its favour. Therefore, while setting aside the impugned
order dated 31st May 2017, Apeksha CHSL deserves to be granted liberty
to challenge the said order dated 4 th August 2016. There is a statutory
right in favour of Apeksha CHSL to apply for deemed conveyance of the
land and building. In its earlier order dated 4th August 2016, the
Competent Authority whilst recognizing such right, has however
granted liberty to Apeksha CHSL to file an application for deemed
conveyance only after the said civil suit is disposed of. Whether the said
decision of the Competent Authority is valid or not, must necessarily be
permitted to be tested by Apeksha CHSL. In my view, therefore, liberty
needs to be granted to Apeksha CHSL to challenge the earlier order
dated 4th August 2016. Such a direction would necessarily be in the
interests of justice.
42) As a matter of fact, the law on the issue of permissibility for
Competent Authority to either entertain a review application or to issue
corrigenda is enunciated in Kashish Park Realty Pvt. Ltd. in which this
Court held that Competent Authority does not have jurisdiction either to
review its own order or to issue corrigenda. This Court accordingly set
aside the impugned corrigenda. However, since the Petitioners therein
had not challenged the earlier orders and certificates dated 22 July 2020
issued prior to corrigenda
( ), liberty was granted to the Respondent-society
to get conveyance deed registered on the basis of those certificates. The
aggrieved society filed Special Leave Petition before the Apex Court
which was withdrawn with liberty to challenge the original order dated
22 July 2020. The Apex Court has granted that liberty to Ganesh Krupa
CHSL by order dated 9 April 2021. Accordingly, Ganesh Krupa CHSL filed
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Writ Petition No. 13685 of 2022 challenging the order dated 22 July 2020.
Similarly, the societies who were Respondents in Writ Petition filed by
Kashish Park also filed their separate Writ Petitions challenging the
orders dated 22 July 2020. By judgment and order dated 21 April 2026,
this Court has allowed the petitions convening in favour of those
societies their rightful area of land. Thus, in the case of Kashish Park
Realty Pvt. Ltd. and Ganesh Krupa CHSL, even though this Court did
not grant liberty to challenge the original order dated 22 July 2020 while
setting aside the corrigenda, the Apex Court granted that liberty. Grant
of such liberty aided the aggrieved societies to secure their lawful
entitlement of land by challenging original order dated 22 July 2020 even
though they had received the same benefit through corrigenda issued in
erroneous exercise of jurisdiction.
43) Thus, the decisions in Kashish Park Realty Pvt. Ltd. and

Ganesh Krupa CHSL are apt illustration of how permitting aggrieved
societies to challenge the original orders rejecting their applications for
deemed conveyance or granting conveyance in respect of a lesser area of
land facilitates the societies in securing their lawful entitlements. The
same course of action deserves to be adopted in the present case by
permitting the Petitioner-Society to challenge the order dated 28 March
2016.
44) There is yet another example where grant of liberty to the
society to challenge initial erroneous order of the Competent Authority,
after setting aside the corrigendum has assisted the society to secure its
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Shree Rasraj Heights CHSL,
lawful entitlement. In the Petitioner-society
had challenged the order dated 12 January 2026 passed by the
Competent Authority allowing Misc. Application filed by Devendra CHSL
by which the Competent Authority had granted proportionate share in
the RG in favour of Devendra CHSL. It was the complaint of Shree Rasraj
CHSL that by original order dated 4 May 2017, the Competent Authority
had conveyed proportionate share to Devendra CHSL in the net plot area
without making any provision for share in common amenities such as
RG. It was contended by Petitioner-Shree Rasraj Heights CHSL that
Devendra CHSL had acquiesced in the order dated 4 May 2017. However,
Devendra CHSL moved Misc. Application and secured order dated 12
January 2026 and had secured proportionate rights in the RG also. The
order passed on 12 January 2026 by the Competent Authority was
challenged by Petitioner-Shree Rasraj Heights CHSL on the ground that
the same was in the teeth of law declared by this Court in Kashish Park
Realty Pvt. Ltd. This Court upheld the contention of Petitioner-Shree
Rasraj Heights CHSL and set aside the order dated 12 January 2026
passed by the Competent Authority. However, this Court granted liberty
to Devendra CHSL to challenge original order dated 4 May 2017.
Aggrieved by grant of liberty by this Court to challenge order dated 4
May 2017, Petitioner-Shree Rasraj Heights CHSL filed SLP before the
Apex Court which was dismissed on 15 October 2026. After grant of
liberty by this Court to challenge original order dated 4 May 2017 and
upholding of that liberty by the Apex Court, Devendra filed a fresh
petition before this Court challenging order dated 4 May 2017.
Entertainability of that petition was questioned by Shri Rasraj Heights
inter-alia on the ground of delay. Repealing the objection, this Court
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upheld the right of Devendra CHSL, to file a fresh petition and has
granted proportionate share in the RG area. This Court has held in
Devendra Co-operative Housing Society Ltd. Versus. District Deputy
11
Registrar in paragraphs 29, 35, 36 and 37 as under:
29. It must be observed at the very outset that the present Petition is
filed in terms of liberty granted by this Court by order dated 15 July
2026 (as confirmed by the Apex Court), and therefore the objections
sought to be raised by Respondent Nos.2 to 9 about maintainability of
the present Petition are totally baseless and deserve outright rejection.
When the Petitioner-Society sought to secure the proportionate share
in the RG through a corrigendum, the same was challenged contending
that the Competent Authority does not have jurisdiction to review its
own order by issuing a corrigendum. Now when a substantive petition is
filed challenging the original erroneous order in terms of liberty
granted by this Court as confirmed by the Apex Court, once again
Petitioner’s remedy is sought to be questioned by raising all sorts of
objections. And all this is being done to grab the entire RG in the layout
by depriving the Petitioner of any share in the RG land. Respondent
Nos. 3 to 9 developers desire to carry out further development in the
layout and if no specified share is granted to Petitioner society in the
RG, by merely allowing them to use the RG as common amenity, they
would grab the entire FSI flowing through the RG and load the same on
the additional building they want to build in the layout. Unfortunately,
Respondent No. 2 society has joined hands with the developers by
aiding them in achieving their nefarious objective. This approach of
Respondent Nos. 2 to 9 deserves to be deprecated. Though the
objections to maintainability and entertainability of the present
petition are totally baseless, the Court is made to spend time in dealing
with and deciding the same. I proceed to do so.
35. Mr. Khandeparkar has highlighted the issue of delay in challenging
order dated 4 May 2017 and has sought dismissal of the Petition on that
ground. The objection on the ground of delay, I must say, is equally
baseless and untenable. From the chronology of events discussed above,
it is clear that Petitioner-Society realized errors in the order dated 4
May 2017 and filed Misc. Application for corrections therein in the year
2025. It succeeded in getting the order corrected on 12 January 2026,
however, this Court set aside order dated 12 January 2026 and granted
liberty to the Petitioner-Society to challenge the order dated 4 May
2017. Therefore, it cannot be contended that there is any delay on the
part of Petitioner-Society in challenging order dated 4 May 2017.
11 WRIT PETITION NO.9954 OF 2026 decided on 4/11/2026
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36. Even otherwise, it is well settled position that MOFA obligations
give rise to continuous cause of action [SEE: Samruddhi Co-operative
Housing Society Limited vs. Mumbai Mahalakshmi Construction Private
Limited4 , Smt. Sushma Tulshidas Adhav vs. Mr. Pradeep D. Shah5 , and
Satellite Garden-1 CHSL (supra)]. Thus, promoter's obligation to convey
the entire portion of land as per entitlement of the Society continues
and the remedy to enforce that obligation does not get extinguished by
any event. Even if a promoter conveys land lesser than Society's
entitlement and Society accepts such conveyance, it can still file
Application under Section 11 of MOFA to secure conveyance of balance
land. Similarly, if Competent Authority allows application of a Society
under Section 11 of MOFA and conveys to it, land lesser than its
entitlement, even after registration of Deed of Conveyance, the Society
can challenge the order of the Competent Authority as principle of
estoppel does not apply against statute as held by this Court in Prestige
Garden A-1 CHSL vs. State of Maharashtra . Thus, mere delay in seeking
the remedy for conveyance of due portion of land by a society does not
defeat its lawful right under Section 11 of MOFA.
37. In the present case, it is the statutory obligation of Respondent Nos.
3 to 9 to convey in favour of Petitioner-Society the whole of the land as
per Petitioner-Society's entitlement. If there is any deficit in area of the
land conveyed in favour of Petitioner-Society, the argument of delay
and laches cannot be raised for grabbing the land supposed to be
conveyed to a society. This is on account of continuous cause of action
created in favour of the society to secure its due entitlement in the land
under Section 11 of MOFA. In my view therefore, the objection of delay
sought to be raised by Respondent Nos.3 to 9 is totally baseless and is
accordingly repelled.
45)
Thus this Court has consistently granted liberty to the
societies who commit mistakes in either filing successive applications for
to seek higher
deemed conveyance or to seek issuance of corrigendum (
area ) for challenging the original erroneous orders. Grant of such liberty
and entertaining subsequent petitions challenging the earlier orders has
assisted several societies to secure their lawful entitlement in the land.
In my view, similar course of action needs to be adopted in the present
case as well by entertaining the present petition.
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46)
Coming to the merits of the case, Mr. Godbole has placed on
record compilation of documents, which contains copy of the file noting
dated 12 March 1999 of MCGM. Though Mr. Savant has sought to raise
objection to filing of the compilation of documents, he himself has
tendered another compilation of documents. In any case this Court is
taking note of the File Noting only for the purpose of taking cognizance
of the BUA figures for proportionate land division. It would be apposite
to reproduce the entire File Noting which is as under:
Shri D.N. Darumala C.A. to Owner Mr. Larase Kini and others has
submitted the proposal for construction of residential building on plat
under reference. The plans for residential building comprises of part
ground + part stilt+ 6 upper floors were approved on 29.03.1986 vide
plan at Pg.180 to 183 bunch 1. As per approved plans the area of the
plot is 2708.4 sq.mtrs. The built up area approved 2190.22 sq.mtrs. as
against the permissible area as per approved plan is 2267.46 sq.atrs. The
existing structures were to be demolished as shown in the approved
plan at Pg.180. The C.C. for part of the bldg. viz. phase I was issued on
26.5.1986 vide Pg.229, bunch I. 
Thereafter Shri Tushar D. Thakkar C.A. to owner submitted a fresh
applicaltion under section 44/69 of the M.R.& T.P. Act and had
eppointed Shri P.P. Nalowade as his architect in the year 1999 vide
Pg.273 (burich II). The amended plans submitted by new architect Shri
P.P. Nalawade were not approved as well as supervision memo of Shri
P.P. Nalawade was also not accepted. However new architect Shri P.P.
Nalawade submitted building completion certificate on 10.4.1991 vide
Pg.531 (bunch II). The same was refused mainly for the following
reasons.
1. The work was not carried out as per the approved plans.
2. All the existing structures which were proposed to be demolished
were not demolished.
Thereafter C.A. to owner Smt. Seema Agarwal appointed new architect
Shri Nitin Shah on 5.5.92 vide Pg.691 and submitted therewith  the
N.O.C. from Shri P.P. Nalawade dated 21.1.92 at Pq.697. The super-
vision memo of Shri Nitin Shah is not accepted as the last plans are
approved on behalf of Shri Tushar Thakkar C.A. to owners of National
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Developer and documentary evidence in the name of Mrs. Seema
Agarwal was not submitted.
The work of the above building is not carried out as per approved plans.
On site inspection during last visit on 16.11.98 it was observed that the
building is constructed consisting of ground + 5 upper floors as per the
completion plans submitted on 10.4.91 except two flats on West side
from Ground floor to 5th floor.
In the mean time, W.D.H/East had accorded the repair permission for
one of the existing structure which was to be demolished as per
approved plans at North/West corner marked as NO.12 vide plan at Pg.
539. However, the party has carried out the work beyond repair
permission. As such the notice under section 351 of B.M.C. Act swas
served upon by Ward office on 13.12.95. Party had approached the City
Civil Court against the notice under section 351 of B.M.C. Act. Hon-ble
Court had directed the party to submit the regularisation proposel in
the office of Building Proposal Deptt. Accordingly the owner of suit
structure submitted the proposal for regularisation on 30.4.96 vide pg.1
of bunch IV. This office has rejected the proposal because the proposal
was not submitted as per B.M.C. & M.R.& T.P. Acts.
Finally the D.M.C.(Z.III) has passed the order for suit structure only
vide Pg.N25 to N31 and directed W.D.H/East to demolish the said suit
structure at party's cost, if the same is not demolished by party within 4
weeks from the date of receipt of order.
The details of the total built up area existing on site under reference is
as under.
a) permissible built-up area 2314.74 sq.mtrs.
as per completion plans.
b) Built up area of bldg. Constructed 1989.31 sq.mtrs.
on site beyond approval but approvable.
c) Built up area of 11 existing structures
(including the suit structures.)
(One structure already demolished on site). 653.74 sq.mtrs.
Total built up area 2643.05 sq.mtrs.
--------------------
Excess built-up area 320.31 sq.mtrs.
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Action under section 53(1) of the M.R.& T.P. Act 1966 is initiated
against the developer of the building. Mr. Tushar Thakkar and Mrs.
Seema Agarwal of National Developer for carrying out the work beyond
approved plan and beyond C.C. on 13.6.97 vide Pg-765-767 bunch III. 
In order to bring down the FSI within permissible limit, it is required to
demolish entire 5 floor (area 311.00 sq.mtrs.) of the building and also to
demolish the excess built-up area approx of suit structure adm. About
91.40 sq.m. 
Ch.E. (D.P.)/Dir.(E.S.& P.)'s approval is requested to 'A' above. On reciept
of orders WOH/E will be requested to take necessary action. 
Submitted please 
47) The above File Noting would indicate the BUA utilized in
construction of Petitioner-society, as well as BUA of 11 existing
structures. In my view, the exercise of proportionate land division can be
undertaken by taking into consideration the above figures. The
permissible BUA in respect of the plot at that time was 2314.74 sq.mts
out of which its BUA of 1989.31 sq.mts has been utilized for construction
of Petitioner's building. The BUA of 11 structures is 653.74 sq.mts. There
is balance BUA of 320.31 sq.mts. In my view therefore, the Petitioner-
society can be granted conveyance of land proportionate to BUA of
1989.31 sq.mts while ownership in the rest of the land can be retained by
the owners of land/structures by taking into consideration the BUA of
653.74 sq.mts + 320.31 sq.mts.
48) In my view, therefore, the Petitioner-Society cannot be
granted conveyance of the entire plot of land and would, at best, be
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entitled to conveyance of only its proportionate share of the land. Mr.
Godbole has fairly accepted this suggestion.
49) In view of the above discussion, the petition succeeds in
part and I proceed to pass the following order:
i. Order dated 28 March 2016 passed by the Competent
Authority in Application No. 60 of 2015 is set aside.
ii. Application No. 60 of 2015 is remanded to the Competent
Authority for fresh adjudication by undertaking the
exercise of proportionate land division in view of the
figures of BUA discussed above.
iii. Petitioners shall place before the Competent Authority
certificate of architect indicating its exact land entitlement
on the basis of BUA figures discussed above.
iv. Parties shall appear before the Competent Authority on 19
November 2026 and shall apply for fixation of date(s) of
hearing in the remanded proceedings.
v. The remanded proceedings shall be decided by the
Competent Authority as expeditiously as possible,
preferably within a period of 4 months.
50)
With the above order, the petition is partly allowed and
disposed of. There shall be no order as to cost.
[SANDEEP V. MARNE , J.]
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51)
After the Judgment is pronounced, the learned counsel
appearing for the Respondent No.8 seeks stay on the judgment for a
period of eight weeks. The request is opposed by the learned counsel
appearing for Petitioner. Considering the nature of findings recorded in
the judgment, I am not inclined to stay the judgment. The request is
accordingly rejected.
[SANDEEP V. MARNE , J.]
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.11.05
21:54:32
+0530
NEETA
SHAILESH
SAWANT
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