Full Judgment Text
2026:BHC-OS:5170
Shivgan 1-WP-1739-2022-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1739 OF 2022
1. Gerald Michael Misquitta,
(as one of the beneficiaries and also as
an Executor and Trustee under the Will
th
dated 16 August, 1993 of The
deceased Mr. Michael John Misquitta
having address at 72/AA, Misquitta
House, Old Police Station Road, Vile
Parle (West), Mumbai 400 056 …Petitioner
Versus
1. State of Maharashtra through its
Chief Secretary and represented by
Office of Public Prosecutor having its
Place of business at High Court
Premises
Hon’ble High Court at Bombay, Fort
Mumbai-400 001
2. District Deputy Registrar,
Co-operative Societies (3)
Mumbai being the Competent
Authority under Section 5(A) of the
Maharashtra Ownership of Flats
(Regulation of the Promotion of
Construction, Sale, Management and
Transfer) Act, 1963 having his Office at
Grihnirman Bhavan, Ground Floor,
Room No.69, Bandra (East), Mumbai-
400 051
3. Priya Co-operative Housing Society
Limited,
A Society registered under the
provisions of the Maharashtra Co-
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operative Societies Act, 1960 under
registration No.
BOM/K[W]/HSG[TC]/2821/86-87
Having its office at 282, Juhu Cross
Lane, Andheri [West], Mumbai – 400
058.
4. M/s. A.K. Associates,
A registered partnership firm,
Through its Partner, Mohammed Umar
Khatri
Having office at 628, Khatri House,
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13 Road, Behind Khar Telephone
Exchange, Khar (West), Mumbai-400
052
5. (a). Chandru Lachmandas Raheja
(b). Suresh Lachmandas Raheja
were partners of M/s. C.S.Enterprises
having address at Raheja Centre Point,
294/CST Road, Near Kalina University,
Santacruz (East), Mumbai-400 098
6. (a) Manuel Anthony Misquitta
(b) Royce Anthony Misquitta
(c) Roger Anthony Misquitta
(d) Ronnie Anthony Misquitta
(e) Kunal Rajiv Patel
(f) Nikita Rajiv Patel
(e) and (f) legal heirs of late Mrs. Pearl
Rajiv Patel
(All being heirs and legal
representatives of late Anthony John
Misquitta
All having address at- 67, Misquitta
House, Old Police Station Road, Vile
Parle (West), Mumbai 400 056
7. (a). Kenneth Michael Misquitta
(b). Oscar Michael Misquitta
(both being the beneficiaries along with
the Petitioner herein having address at
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72/AA, Misquitta House, Old Police
Station Road, Vile Parle West, Mumbai-
400 056.
8. (a) Nancy Philip Misquitta
(b) Clive Philip Misquitta
(c) Regina Mark Texeira
(d) Louella Christopher Farro
(e) Rufina Roy Baptista
(f) Rovina Leroy Gonsalves
(All being heirs and legal
representatives of late Philip Lawrence
(Dominic) Misquitta, all having address
at – 72/AA, Misquitta House, Old Police
Station Road,
Vile Parle (West), Mumbai-400 056.
9. (a) Blanche John Misquitta
(b) Blamario John Misquitta
(c) Sobers John Misquitta
(d) Deonne Darwin D’Souza
(All being heirs and legal
representatives of late John Alex
(Dominic) Misquitta
All having address at – 72/AA,
Misquitta House, Old Police Station
Road, Vile Parle (West), Mumbai 400
056.
10. Leslie Dominic Misquitta
having address at- 72/AA, Misquitta
House, Old Police Station Road, Vile
Parle (West), Mumbai 400 056
11. Nelson Dominic Misquitta
having address at – 72/AA, Misquitta
House, Old Police Station Road, Vile
Parle (West), Mumbai 400 056.
12. Arjun Singh Rathod
Prop of Rasal Builders and Developers
st
having address at Rajveer Royal, 1
Floor, Dr. Charat Singh Colony Road,
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Chakala, Andheri (East), Mumbai 400
099 …Respondents
Mr. Rohaan Cama , Rajan Thakkar, Gaurav Gupte, Ken
Misquitta i/b Jeetendra Ranawat, for the Petitioner.
Ms. Vrushali Kabre , AGP for the Respondent Nos.1 and 2.
Mr. Mayur Khandeparkar a/w Udayasankar Samudrala, for
Respondent No.3.
Mr. Jatin Sheth , for Respondent Nos.6(b), 6(c), 6(d), 6(e) and
6(f).
Mr. Rushabh Thacker , for Respondent Nos. 7 to 11.
Mr. Gauraj Shah a/w Yatin R. Shah, for Respondent No. 12.
CORAM DR. NEELA GOKHALE, J.
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RESERVED ON: 18 FEBRUARY 2026
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PRONOUNCED ON: 25 FEBRUARY 2026
JUDGMENT: -
1.
Rule. Rule made returnable forthwith. With consent of
the parties, the Petition is taken up for final hearing.
th
2.
The Petitioner assails Order dated 28 May 2014 passed
by the Respondent No. 2 - District Deputy Registrar of Co-
operative Societies (3), Mumbai, ('Competent Authority')
whereby the Deputy Registrar issued a Certificate, certifying
the case of the Respondent No. 3 - Society, to be fit for
enforcing the unilateral execution of a conveyance deed in its
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favour. The Deputy Registrar further directed the Society to
submit a draft of transfer document of the subject property to
the Competent Authority, in terms of the Certificate and
further directed the Sub-Registrar of Assurances to transfer
the right, title and interest of the Promoter, in the subject
property in favour of the Society, after ascertaining the
necessary stamp-duty to be paid, from the Collector of
Stamps. The Petitioner has also sought cancellation of the
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Deed of Assignment and Transfer dated 5 July 2014
registered in the office of the Sub-Registrar of Assurances,
Andheri No. 3 under Serial No. BDR-9/5261 of 2014 dated
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10 July 2014.
3.
The facts of the case, in brief, are as follows:
3.1 All that piece and parcel of land admeasuring
approximately 677.90 sq.mtrs. of area, bearing Survey
No.286, Hissa No.1 (Part), CTS No.521/2 of Village: Vile Parle
(hereinbelow referred as ‘said property') was owned by
Misquitta Family. The Petitioner is one of the beneficiaries of a
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share in the said property. The Respondent Nos. 6 to 11 also
have their respective shares in the said property. The
Petitioner and the Respondent Nos. 6 to 11 are thus, co-
owners of the said property. The Respondent No. 2 is the
Competent Authority under Section 11(3) of the Maharashtra
Ownership Flats Act (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963
('MOFA'). The Respondent No. 3 is the Society, who sought the
Unilateral Deemed Conveyance Certificate. The Respondent
No. 4 is a partnership firm, which claims to have been
assigned a sub-lease by the Respondent No. 5(b). The
Respondent Nos. 5(a) and 5(b) were partners of the
partnership firm namely, M/s C.S. Enterprises, which was
assigned the leasehold rights in the said property by the
Petitioners. The Respondent No. 12 is the proprietor of a firm,
with whom the Society has executed re-development
agreement of the property. He is alleged to have connived
with the Society in obtaining the impugned order.
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3.2 By a registered lease deed dated 20 June 1974, the
Original Owners of the said property leased the said property
in favour of the Respondent Nos. 5(a) and 5(b), who were at
that time partners in the M/s. C.S. Enterprises. The lease was
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for a term of 98 years commencing from 1 June 1974 but
determinable and renewable, as provided in the lease deed.
The lease rent was agreed to be Rs.1,000/- per month. Clause
4(a) of the lease deed declared the rights of the lessee to
assign, mortgage, sub-lease and/or sub-divide the said
property and their interest therein. It was specifically declared
that no further consent was required of the lessors for the
aforesaid. The owners however, retained reversionary rights in
the property.
3.3 The Respondent No. 4 is alleged to have procured a sub-
lease from the Respondent No. 5(b) after dissolution of the
partnership between Respondent Nos. 5(a) and 5(b), which in
turn developed the said property by constructing a building
thereon. The Respondent No. 4 sold the flats in the said
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building on ownership basis to various flat purchasers by
executing respective flat booking agreements in their favour.
The Respondent No. 3- Society of the said flat purchasers was
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registered on 15 March 1994 with the Competent Authority.
Since the Respondent No. 4 failed to perform its statutory
obligation of conveying the land and building in favour of the
Society, the Respondent No. 3-Society applied to the
Respondent No. 2-Authority for the same under the provisions
of Section 11(3) of the MOFA. Only six members of the
Misquitta Family were made parties to the Application and
arrayed as Opponents- 'heirs and legal representatives of
Original Owner, Mr. Anthony John Misquitta'. The Respondent
No. 4 herein was also arrayed as the Opponent.
3.4 The Respondent No. 2 - Competent Authority granted a
certificate of Unilateral Certificate of Deemed Conveyance, in
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favor of the Society, vide order dated 28 May 2024. It is this
order, which is impugned in the present Writ Petition.
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3.5 Pursuant to the impugned order, a Deed of Assignment
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and Transfer dated 5 July 2014 was registered at the office
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of Sub-Registrar, Andheri-3 on 10 July 2014. The same was
executed by the Respondent No. 2 in favour of the Respondent
No. 3-Society. This Deed of Assignment and Transfer is also
assailed in the present Petition.
4.
Mr. Rohaan Cama, learned counsel appeared for the
Petitioner; Ms. Vrushali Kabre, learned AGP represented the
Respondent Nos. 1 and 2; Mr. Mayur Khandeparkar, learned
counsel, represented the Respondent No. 3; Mr. Jatin Sheth,
learned counsel appeared for the Respondent Nos. 6(a), 6(b),
6(e) and 6(f) and the Respondent Nos. 7 to 11 and Mr. Gauraj
Shah, learned counsel represented the Respondent No. 12. All
the parties have submitted their written notes of arguments.
5.
Submissions of Mr. Cama:
(i) Despite the Petitioner and Respondent Nos. 6 to 11,
being owners of the said property, except for legal heirs of
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Anthony Misquitta, none were made parties to the application
for Deemed Conveyance.
(ii) The Deed of Assignment purporting to be only an
assignment of leasehold rights, is relied upon by the
Respondent Nos. 3, 4 and 12 as assignment of ownership
rights, without the actual owners being given an opportunity
of being heard by making them parties in the Deemed
Conveyance application.
(iii) Mr. Cama set out the legal position on the right of
Owners to be heard. He submitted that it is settled law that an
Owner and/or Promoter is required to be heard at the time of
grant of Deemed Conveyance. Equal and fair opportunity
must be given to all persons concerned including the owner,
builder, Promoter, etc. at the time of hearing.
(iv) The scheme of the MOFA contemplates that the
Competent Authority is required to hear all concerned
including owner, Promoter, builder and purchaser of the said
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property in question. Form VII under the MOFA requires a
Promoter or an opponent to be made a party in an application
for Deemed Conveyance.
(v) Prejudice, whether caused or otherwise, to the Owner is
not a criterion for the Competent Authority to deny the
Owners a right to be heard.
(vi) The contention of the contesting Respondents that no
notice is required to be given to the Owner as the assignment
is only of leasehold rights in the land and the Petitioner's
rights are not affected is completely misconceived.
(vii) Clause (4) of the Lease Deed conferring leasehold rights
on the Respondent Nos. 5(a) and 5(b) was a limited right
given only to them (Rahejas), and there is nothing further in
the Lease Deed, which allows a sub-lessee (in this case,
Respondent No. 4) to further assign or sub-let the land
without consent of the original lessors, i.e., the Petitioners and
other co-owners.
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(viii) The Respondent No. 4 itself does not have leasehold
rights, as such rights were assigned and vested only in the
Rahejas. The Deed of Assignment impugned herein does not
even name Respondent No. 5-Rahejas. The existence of any
such sub-lease in favour of the Respondent No. 4 is also
suspect as despite repeated directions given by this Court, no
such deed was placed on record. Even the impugned order
and the impugned Deed of Assignment mention that it
'appears' that there may have been a sub-lease executed in
favour of Respondent No. 4 and no such document was placed
even before the Competent Authority.
(ix) A right to re-develop the said property in perpetuity was
not even vested in Respondent No. 5-Rahejas and they only
had a one-time right to construct on the property. No such
right was allowed to be assigned to a sub-lessee.
(x) Whether the Petitioner will fail or succeed in opposing
Deemed Conveyance Application is immaterial. The very
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status of the Petitioner as owner of the said property makes it
mandatory for him to be made a party to the Application.
(xi) Even Index II of the property pursuant to purported
conveyance uses the word 'Abhihastantaran', which means
transfer. The said Index II indicates that the transfer was
acquired from the legal heirs of Mr. Anthony Misquitta and
not only from Respondent No. 4.
(xii) Mr. Cama places reliance on the following judgments of
this Court: -
(1) Sarika R. Bagve v. New Ashish Co-operative Housing
1
Society Limited
(2) Tushar Jivram Chauhan & Anr. v. State of Maharashtra &
2
Ors.
3
(3) A.H. Wadia Trust & Ors. v. State of Maharashtra & Ors.
1 Writ Petition No. 8528 of 2021 decided on July 19, 2024.
2
2015(3) Bom.C.R. 623
3
2023 SCC OnLine Bom 1441
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(4) Jagshi Jethabhai Chheda & Anr. v. District Deputy
4
Registrar of Co-operative Societies & Ors.
(5) Kashish Park Reality Pvt. Ltd. & Anr. v. State of
5
Maharashtra & Ors.
6.
Submissions of Mr. Mayur Khandeparkar:
(i) The Society was compelled to apply for Deemed
Conveyance as the Respondent No. 4 failed to perform his
statutory obligations.
(ii) The Society had the details of only one branch of the
Original Owners and hence, only joined that branch in the
Application. One branch of Co-owner was represented, and it
binds all co-owners and no prejudice is caused to the other co-
owners not being joined in the proceedings. According to Mr.
Khandeparkar, non-joinder of other co-owners makes no
difference.
(iii) The Application made by the Society was for unilateral
assignment of leasehold rights and since the Registrar granted
4
2024 SCC OnLine Bom 3758
5
2021(3) Mh.L.J. 778
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only leasehold rights to the Society, there is no prejudice
caused to the owners as their ownership rights remain
unaffected.
(iv) The Original Owners, who were made parties to the
proceedings never objected to the Application and thus, the
Society not being able to trace the details of other legal
owners, the Petitioner cannot take advantage of this position.
(v) The Society has only received the rights vested in the
Respondent No. 4, which are only leasehold rights. Hence, the
Owners are not divested of their ownership rights. The
Petitioner and the co-owners even today continue to be the
owners of the said property, and their reversionary rights
remain intact. Hence, there is no prejudice to the Petitioner.
(vi) In any case, the Development Control and Promotion
Regulations (DCPR) for Greater Mumbai, 2034 recognize the
rights of the lessees. The lessees are also entitled to rights of
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TDR akin to owners. Hence, the Owners cannot claim
exclusive rights separate from the rights of lessees.
(vii) It is settled law that disputes regarding the property to
be conveyed/transferred by the Competent Authority, cannot
be gone into in a Writ Petition. Such dispute lies within the
jurisdiction of the Civil Court.
(viii) This Court has clearly held that unilateral conveyance
only grants rights vested in the Promoter and does not bar a
suit to be filed by the co-owners to claim their substantive
rights.
(ix) The Supreme Court in its decision in the case of
Arunkumar H. Shah HUF v. Avon Arcade Premises Co-
6
operative Society Limited & Ors. has clearly laid down that
the Competent Authority does not decide the question of title
and the same is to be decided in a civil suit. The Writ Court
6
2025 INSC 524
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must not interfere with the order granting Deemed
Conveyance unless the same is manifestly illegal.
(x) The Supreme Court in another decision has held that
unless serious prejudice is shown, an order cannot be set
aside.
(xi) Mr. Khandeparkar has placed reliance on the following
decisions:
(1) Zainul Abedin Yusufali Massawawala & Ors. v.
Competent Authority District Deputy Registrar of Co-
7
operative Housing Societies, Mumbai, and Ors.
(2) Farhat Co-op. Housing Society Ltd., Mumbai v.
8
Malkani Enterprises, Mumbai & Ors.
(3) Shanti Prakash Realty & Infrastructure LLP
formerly M/s. Shanti Prakash Realty & Infrastructure
Private Limited & Anr. v. District Deputy Registrar,
9
Cooperative Societies & Ors.
(4) Blue Heaven Co-op Housing Society Limited,
Through Its Secretary/Chairman Aman Chandulal Patel
7 2016 SCC OnLine Bom 6028
8
2014 (6) Mh.L.J. 358
9
(2024) 2 High Court Cases (Bom) 191
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v. Punit Construction Company Private Limited and
10
Others
(5) A.H. Wadia Trust & Ors. (Supra)
(6) Haresh Vijaysinh Bhatia & Ors. v. District Deputy
11
Registrar & Ors.
(7) Arunkumar H. Shah HUF (Supra)
12
(8) State of Uttar Pradesh v. Sudhir Kumar Singh
(9) Sushanku Builders Limited Minal Co-operative
Housing Society v. Apex Grievance Redressal Committee
13
& Ors. along with connected matters
(10) Jayantilal Investments v. The District Deputy
14
Registrar, Coop. Societies, Mumbai City (4) & Ors.
10
2024 SCC OnLine Bom 3618
11
2025 SCC OnLine Bom 1981
12 2020 (6) ALJ 760
13
2025 SCC OnLine Bom 727
14
Writ Petition No.7669 of 2025
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7.
Submissions of Mr. Jatin Sheth:
(i) Mr. Sheth supported the arguments of Mr. Cama. He
submitted that the order impugned herein is void ab initio ,
non-est and has been obtained by playing fraud on the
Competent Authority. He submits that the order against the
deceased Respondent is a nullity as Mrs. Pearl Patel arrayed as
the Opponent No. 6 in the application for Deemed
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Conveyance died on 8 November 1999 i.e., 14 years prior to
the filing of the Application. No order can be passed against a
deceased person without bringing on record her legal heirs.
(ii) Lack of notice to the co-owners is in complete violation
of the principles of natural justice and even the Owners
depicted as Opponents were not served with the notice of the
Application.
(iii) The foundational document being the Sub-lease
Agreement between the Rahejas and M/s. A.K. Associates is
not produced on record. The Respondent No. 2 - Competent
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Authority has given a complete go bye to the principles of
natural justice and thereby the proceedings are rendered
arbitrary.
(iv) The reversionary rights of the Owners as mentioned in
the original Lease Deed have been divested by the impugned
order.
(v) Mr. Sheth also adopted all the other points of arguments
raised by Mr. Cama.
8.
I have heard learned counsel appearing for the
respective parties and perused the record with their
assistance.
ANALYSIS
9.
I have considered the rival submissions submitted at the
bar. In the run of the mill cases, generally a challenge to the
grant of Certificate of Unilateral Deemed Conveyance revolves
around the question of title to the subject land and building or
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to the extent of entitlement of the Applicant before the
Competent Authority. Such a challenge is determined based
on principles fairly crystallized by various decisions of this
Court. In the case at hand however, the only question that
arises for consideration is whether the Owner is required to be
given an opportunity of being heard, before granting a
Certificate of Unilateral Deemed Conveyance. Thus, the core
controversy in the present matter is limited to the remit of
jurisdiction exercised by the Competent Authority and the
legality and the correctness of the procedure followed by the
Competent Authority in arriving at the impugned order.
10.
Before embarking to answer the above question raised
by the Petitioner, it is necessary to keep in view the object of
the MOFA. The MOFA was enacted with the asseverate object
of regulating the promotion of the construction, sale,
management and transfer of flats taken on ownership basis, as
it was found that acute shortage of housing in several areas of
the State led to abuses and malpractices, rendering needy flat
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purchasers vulnerable. Under Section 4 of the MOFA, an
obligation is cast on the Promoter to enter into written
agreement for sale with each of the persons desirous of
purchasing flats in the building by the Promoters in a
prescribed format. Such agreements are required to be
registered. Section 10 of the MOFA enjoins the Promoter to
take steps for registration of the organization of persons, who
have taken the flats, as the Co-operative Society or as the case
may be, the Company.
11.
Section 11 of the MOFA, which is vital to the protective
regime, mandates that the Promoter shall take all necessary
steps to complete his title and convey to such an organization,
his right, title and interest in the land and building and
execute all relevant documents thereof, in accordance with
the agreement executed under Section 4 of the MOFA. If there
is no agreement as to the period within which the conveyance
is to be executed, the Promoter is obligated to execute the
same within the prescribed period and deliver all documents
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of title relating to the property, in his possession or power. If
the Promoter fails to execute the conveyance as mandated by
this provision, within the prescribed period, the members of
such society or the company or the association of apartment
owners, as the case may be, may make an application to the
Competent Authority concerned, for issuing a Certificate that
such organization is entitled to have a Unilateral Deemed
Conveyance executed in their favour.
12.
As per Section 11(4) of the MOFA, on receiving such a
submission, the Competent Authority is expected to make
such inquiries as deemed necessary and after verifying the
authenticity of the documents submitted and after giving the
Promoter a reasonable opportunity of being heard, if satisfied
that it is a fit case for issue of such Certificate, shall issue such
Certificate to the Registrar of Assurances, certifying as such.
13.
Section 11(5) of the MOFA then casts a duty on the Sub-
Registrar to issue summons to the Promoter, to show cause
why such Unilateral Deemed Conveyance should not be
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registered as Deemed Conveyance and after giving the
Promoter and the Applicant reasonable opportunity of being
heard and upon being satisfied that it is a fit case for
unilateral conveyance, register that instrument as Deemed
Conveyance.
14.
Thus, a conjoint reading of the relevant provisions of the
MOFA and the MOFA Rules, clearly assign statutory
obligations on the Promoter. The general reluctance and
refusal on the part of the Promoter to discharge these
obligations, especially, pertaining to completing the title of the
Society, made the Legislature to step in and enforce these
obligations. The Competent Authority is thus, entrusted with
the responsibility to enforce the Promoter's obligations. The
Competent Authority is however, required to follow the
fundamental principles of the judicial process.
15.
I have carefully gone through all the decisions cited by
the parties. The decisions cited by Mr. Khandeparkar affirm
that the Competent Authority is to follow a summary
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procedure in arriving at a conclusion as to whether a case for
grant of Unilateral Deemed Conveyance is made out. It is
settled law that the remit of enquiry of the Competent
Authority is confined to the question as to whether there is an
agreement within the contemplation of Section 4 of the
MOFA; whether the Promoter has committed a default in
conveying his right, title and interest in the land and building
in favour of the Society and thereby failed to perform his
statutory obligation under the MOFA. All the decisions relied
upon by Mr. Khandeparkar hold that the Competent Authority
is neither competent nor expected to delve into the question
of title of the said land. In Zainul Abedin (Supra @ Pg. No.
17 ), the Court determined an issue concerning the deemed
conveyance, traveling beyond the stipulations in the
agreement and the grievance of the Petitioner in that matter
that a larger property was allowed to be claimed by the
Society. In that context, the Court held that the proper remedy
of the Petitioner was to approach the competent Civil Court
and not to file a Writ Petition.
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16.
The challenge raised by the Petitioner in the present
matter, however, is not related to determining his title. The
title of the Petitioner and Respondent Nos.6 to 11 as owners,
is not disputed. The challenge pertains and is limited to the
adherence by the Competent Authority, to the principles of
natural justice. Hence, the core issue in the case of Zainul
Abedin ( Supra @ Pg. No.17 ) is quite distinct from that in the
present case.
17.
In Blue Heaven Co-operative Housing Society Ltd.
(Supra @ Pg. No.17), the debate before the Court centered
upon the right of the flat purchasers to enforce MOFA
obligations against the owner. In that context, while
answering several issues, this Court held that it is not only the
conveyance of the land which can be granted but also the
assignment of lease and the Competent Authority is entitled to
mould the relief and grant certificate for assignment of lease
in favour of the Society. The finding in the decision sought to
be relied upon by Mr. Khandeparkar is based on the distinct
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facts in that matter. However, this Court in Blue Heaven
(Supra @ Pg. No.17) itself, observed that the definition of the
expression 'Promoter' is of widest amplitude and is so defined
to ensure that the intention of the legislature to enact MOFA,
is achieved and the owners fall within the definition of
'Promoter' under Section 2(c) of the MOFA and are bound to
convey their right, title and interest in the land and building
in accordance with the flat purchaser's agreement.
18.
Insofar as the case in hand is concerned, the following
facts emerge. The Society has joined only six legal heirs in the
Misquitta Family as Opponent Nos. 1 to 6. Admittedly, the
Opponent No. 6 was deceased, even at the time of making the
application for deemed conveyance. There is no justifiable
reason given by the Society as to why only six owners were
made parties to the Application, save and except, a submission
that the Society was unable to trace the other co-owners. This
justification is unreasonable and unacceptable. The averments
in the Application, pertaining to the rights of the Respondent
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No. 5- Rahejas being transferred to the Respondent No. 4-
M/s. A.K. Associates, which is portrayed as the Promoter in
relation to the construction on the said property, is totally
ambiguous. Clause (iv) of the Application contains an
averment that 'It appears that some agreement for sub-lease
must have been executed by and between the said Mr. Suresh
Lachmandas Raheja and M/s. A.K. Associates, i.e., the
Opponent herein, wherein Mr. Suresh Lachmandas Raheja
must have granted to M/s. A.K. Associates, i.e., the Opponent
herein the sub-lease of the larger plot .......'. It is clear from
the said averment itself that the status of M/s. A.K. Associates
as sub-lessee is uncertain.
19.
It also appears from paragraph 4 of the Application that
on an earlier occasion, the Competent Authority by its order
th
dated 10 July 2012 had rejected an earlier application
seeking Unilateral Deemed Conveyance on the ground that
Original Owners were not made parties to the Application as
Opponents. Thus, the Applicant in the present Application
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selectively made only six legal heirs, as owners of the said
land as Opponents without joining the Petitioner and the
Respondent Nos. 6 to 11 as parties to the Application. This
also clearly establishes the fact that the Society was well
aware of the fact that the Owners were required to be made
parties to an application seeking Unilateral Deemed
Conveyance.
20.
The prayer made in the Application seeks a Certificate
declaring that the Society is entitled to have a Unilateral
Deemed Conveyance but limits itself to seeking assignment of
leasehold rights in the land and conveyance of building under
the MOFA. Mr. Khandeparkar is at pains to canvass that the
Society is entitled to receive only those rights, which are
vested in the Promoter. However, the statutory obligation on
the Promoter is to first complete his own title and thereafter
convey the same to the organization of persons, who have
taken the flats, which in this case is the Respondent No. 3-
Society. Having contested the application before the
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Respondent No. 2 - Competent Authority, strangely, he
supports the impugned order, before this Court. It is also
strange that the Society as well as the Competent Authority
appear to be satisfied with the conveyance of rights in the said
property, limited to the leasehold rights. I say strange, because
Mr. Khandeparkar brought to my notice that, the Society is
presently under redevelopment, pursuant to an agreement
executed by and between the Society and the Respondent No.
12. Without conveyance of ownership rights to the land as
well as building, the title to the land remains elusive to the
Society. In the course of redevelopment, any additional FSI, if
any available, will continue to be the property of the
Petitioner and other co-owners. Having noted these
observations, it is made clear that these observations are only
incidental and have no bearing on the limited issue involved
in the present matter.
21.
Be that as it may, by way of the impugned order, the
Respondent No. 2 - Competent Authority while certifying the
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entitlement of the Society to be granted Unilateral Deemed
Conveyance, has directed transfer of the right, title and
interest of the Promoters in favour of the Society. While doing
so, the Respondent No. 2 - Competent Authority has failed to
appreciate that the Owners of the said land are also entitled to
be made Opponents in the Application and are entitled to an
opportunity of being heard. The impugned order records that
a public notice was directed to be given in the local
newspaper to invite objections from any other interested
parties. The said notice is purported to have been given in
Form 13 in the ' Free Press Journal’ and Dainik ' Navshakti'
(Marathi). The impugned order also notes that notices were
issued to Opponents by R.P.A.D. However, there is no mention
regarding submissions made by the six co-owners. In fact, the
order also notes existence of the lease deed executed by the
Original Owners in favour of the Respondent No. 5-Rahejas
and in turn to the Respondent No. 4- M/s. A.K. Associates.
Having referred to the original Lease Deed, the Respondent
No. 2 - Competent Authority failed to appreciate that only the
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six Opponents shown as owners are not the only owners of
the property. Moreover, he proceeded to accept the status of
Respondent No. 4 - M/s. A.K. Associates as a sub-lessee of the
Respondent No. 5-Rahejas, only on an averment of the parties
present before him i.e., only the Society and M/s. A.K.
Associates, without seeking a copy of the Sub-lease Deed,
which demonstrates that the Respondent No. 2 - Competent
Authority failed to comply with the mandate of Section 11(4)
of the MOFA, which obliges him to pass orders after verifying
the authenticity of the documents as well as making such
enquiries as deemed necessary. He is also required to give the
Promoter a reasonable opportunity of being heard.
22.
The Competent Authority has not recorded any reason
in the impugned order as to why it accepted only Anthony's
legal heirs as Opponents and failed to direct the Petitioner and
other co-owners to be made parties. All in all, it is clear that
the Petitioner and other co-owners were neither made parties
nor were they given any opportunity of being heard.
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23.
In Tushar Jivaram Chauhan (Supra) , this Court held that
the Competent Authority is required to give a fair and equal
opportunity of hearing to all concerned, including Owner,
Promoter, Builder and the Purchaser of the property in
question and that the Builder is not the only counter party to
an application for Deemed Conveyance. The scheme of MOFA
itself contemplates that the Competent Authority is to take a
decision of granting Deemed Conveyance only after satisfying
himself about the veracity of the documents and by following
the prescribed procedure, including giving fair and equal
opportunity to all concerned. The principles of natural justice
are to be strictly followed. The summary power in the
Competent Authority does not mean that the Authority is
entitled to overlook to the principles of natural justice. The
facts in the present case demonstrate a complete breach of the
most elementary rule of audi alteram partem.
24.
The submissions of Mr. Khandeparkar that in the facts of
the case, no prejudice as such, can be said to have been
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caused to the Petitioner, cannot be acceded to. In the case of
Sudhir Kumar Singh (Supra) , as relied upon by Mr.
Khandeparkar, the Supreme Court, after an analysis of its
previous precedents, has enunciated that the breach of the
audi alteram partem rule, cannot, by itself, without more, lead
to the conclusion that prejudice is thereby caused. Where
procedural and/or substantive provisions of law embody the
principles of natural justice, an infraction, per se , does not
lead to invalidity of the orders passed. Here again, prejudice
must be caused to the litigant, except in the case of a
mandatory provision of law, which is conceived not only in
individual interest but also in public interest.
25.
A larger bench of the Supreme Court, in its recent
decision in the matter of Krishnadatt Awasthy v. State of M.P.
15
& Ors. , referred to it, after a split verdict by two learned
judges of the Supreme Court, discussed the position of law
summarised in Sudhir Kumar (Supra) in the context of the
15
2025 INSC 126
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‘prejudice’ exception. The observations of the Supreme Court
were as under:
“47. The aforementioned principles on the ‘prejudice
exception’ must not be however be understood as infringing
upon the core of the principle of audi alteram partem. In
this regard, the constitutionalisation of administrative law
and the doctrinal shifts spearheaded in Maneka Gandhi v.
Union of India [1978] 1 SCC 248] were succinctly observed
in a recent judgment in Madhyamam Broadcasting Ltd. v.
Union of India [(2023) 13 SCC 401], as under:
55.1 Firstly, procedural fairness was no longer viewed
merely as a means to secure a just outcome but a
requirement that holds an inherent value in itself. In view
of this shift, the courts are now precluded from solely
assessing procedural infringements based on whether the
procedure would have prejudiced the outcome of the case.
[S.L. Kapoor v. Jagmohan, (1980) 4 SCC 379; The non-
observance of natural justice is itself prejudice to any man
and proof of prejudice independently of proof of denial of
natural justice is unnecessary; also see Swadeshi Cotton
Mills v. Union of India, (1981) 1 SCC 664 : AIR 1981 SC
818] Instead, the courts would have to decide if the
procedure that was followed infringed upon the right to a
fair and reasonable procedure, independent of the
outcome. In compliance with this line of thought, the
courts have read the principles of natural justice into an
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enactment to save it from being declared unconstitutional
on procedural grounds. [Olga Tellis v. Bombay Municipal
Corpn., (1985) 3 SCC 545; C.B. Gautam v. Union of India,
(1993) 1 SCC 78; Sahara India (Firm) (1) v. CIT, (2008)
14 SCC 151; Kesar Enterprises Ltd. v. State of U.P., (2011)
13 SCC 733]
55.2 Secondly, natural justice principles breathe
reasonableness into the procedure. Responding to the
argument that the principles of natural justice are not
static but are capable of being moulded to the
circumstances, it was held that the core of natural justice
guarantees a reasonable procedure which is a
constitutional requirement entrenched in Articles 14, 19
and 21. The facet of audi alteram partem encompasses the
components of notice, contents of the notice, reports of
inquiry, and materials that are available for perusal. While
situational modifications are permissible, the rules of
natural justice cannot be modified to suit the needs of the
situation to such an extent that the core of the principle is
abrogated because it is the core that infuses procedural
reasonableness. The burden is on the applicant to prove
that the procedure that was followed (or not followed) by
the adjudicating authority, in effect, infringes upon the
core of the right to a fair and reasonable hearing. [See
para 12 of Bhagwati, J.'s judgment in Maneka Gandhi v.
Union of India, (1978) 1 SCC 248.]
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48. Pertinently on the issue, a five-judge bench of this
Court in CORE(supra) described the object of observing the
principles of natural justice as under:
80. …The object of observing the principles of natural
justice is to ensure that “every person whose rights are
going to be affected by the proposed action gets a fair
hearing.” The non-observance of natural justice is itself a
prejudice to any person who has been denied justice
depending upon the facts and circumstances of each case.
The principle of procedural fairness is rooted in the
principles of the rule of law and good governance. In
Madhyamam Broadcasting Limited v. Union of India
(2023) 13 SCC 401, this Court held that the requirement
of procedural fairness “holds an inherent value in itself.”
26.
Returning to the facts of the present case, as detailed
herein above, a denial of opportunity of hearing to the
Petitioner, as owner of the said land, cannot be said to be
inconsequential or immaterial. The Petitioner and the
Respondent Nos. 6 to 11 as Owners are entitled to bring to the
notice of the Respondent No. 2-Competent Authority any facts
related to the said property. The legal heirs of Anthony
Misquitta are made Opponents in the Application seeking
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Deemed Conveyance as owners. Directing the Sub-Registrar of
Assurances to transfer right, title and interest of the Promoters
in the said property in favour of the Society, also implies the
transfer of rights of the said legal heirs shown as Opponents.
Admittedly, they are not the only Owners of the property. In
view of the same, the absence of the Petitioner and the
Respondent Nos. 6 to 11 has undoubtedly rendered a gross
procedural irregularity in the decision of the Respondent No.
2 - Competent Authority in deciding to grant the impugned
Certificate.
27.
It is thus, clearly demonstrated that the Respondent No.
2 - Competent Authority has failed to appreciate the factors,
which were germane for the determination of the Application.
Undoubtedly, the Respondent No. 2 - Competent Authority
was not expected to delve into the question of title. In any
case, the title to the said property is not disputed in the
present matter. However, the fact that only six persons were
selectively arrayed as Owners of the said property, clearly
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indicates a singular lack of consideration by the Registrar in
the discharge of his duties under Section 11(4) of the MOFA.
The Competent Authority is statutorily bound to make
necessary enquiries and ascertain the veracity of the
documents filed along with the application seeking deemed
conveyance. The entire object of MOFA is to convey and
complete the title of the co-operative housing society and
protect the interests of the flat purchasers. When the promoter
fails to comply with the statutory obligations, it is the duty of
the competent authority to enforce compliance, by following
the procedure set out in Section 11(4) of MOFA. Thus, the
question about whether prejudice was caused due to non-
observance of the principles of natural justice cannot be raised
where such principles are incorporated into the statutory
procedure itself. Moreover, the prejudice theory must be
understood as an exception to the general rule and cannot be
the norm. In view of the foregoing, a gross violation of the
principle of audi alteram partem is noticed in the present case.
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28.
Pursuant to the issuance of the Deemed Conveyance
certificate by the Competent Authority, the Sub-Registrar of
Assurances acted upon the same and registered the Deed of
Assignment and Transfer, without giving any notice to the
Petitioner and the Respondent Nos. 6 to 11. However, the six
Owners (including a deceased Owner) have been referred to
in the said Deed of Conveyance as confirming parties. Even,
the property card extract of the said property shows a
mutation entry of only the six persons mentioned in the
application seeking Unilateral Deemed Conveyance as owners
who have confirmed the Conveyance document. This is
seriously prejudicial to the Petitioner and the Respondent Nos.
6 to 11, who are also co-owners in the said property. Thus, the
impugned order passed by the Registrar has seriously
prejudiced the Petitioner and other owners.
29.
Pursuant to the impugned order and Deed of
th
Assignment and Transfer dated 5 July 2014 registered with
the Sub-Registrar, an agreement for re-development of the
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property was entered into with Respondent No. 12 and the
said work is in progress after demolishing the old building. I
have perused the agreement for re-development of the said
nd
property dated 22 September 2013. Surprisingly, the
document mentions the original owners as being such, in
respect of the said property. However, the document then
terms the Society as being entitled to have all right, title and
interest in the land and building, sufficient to appoint the
Respondent No. 12 as a developer to carry out the re-
development of the said property. This document based on the
Unilateral Deemed Conveyance Certificate followed by the
registered transfer document is also prejudicial to the interests
of the Petitioner and the co-owners since all along, neither the
Society nor the Respondent No. 4 has disputed the title of the
owners in the said property.
30.
An inference thus, becomes inescapable that the
impugned order was passed by the Competent Authority,
without adhering to the fundamental principles of judicial
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process and providing an effective opportunity of hearing to
the Petitioner and without conducting an enquiry under
Section 11(4) of the MOFA. Resultantly, the impugned order
th
dated 28 May 2014 passed by the Competent Authority as
well as the instrument of Unilateral Deed of Conveyance
th
dated 5 July 2014 are quashed and set aside and the matter
is remitted back to the Competent Authority for a fresh
decision after providing an opportunity of hearing to the
Petitioner and other concerned persons.
31.
Hence, the following order: -
ORDER
th
(i) The impugned order dated 28 May 2014 passed by the
Competent Authority stands quashed and set aside.
th
(ii) The Unilateral Deed of Conveyance dated 5 July 2014
also stands canceled.
(iii) The Application for grant of Unilateral Deed of
Conveyance stands remitted back to the Competent Authority
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for a decision afresh, in accordance with the law, after
providing an effective opportunity of hearing to the parties.
(iv) The parties shall appear before the Competent Authority
on 9th March 2026. The Competent Authority is requested to
make an endeavour to hear and decide the Application as
expeditiously as possible and preferably within a period of
two months from the date on which the parties communicate
the present Judgment and Order to it.
(v) By way of abundant caution, it is clarified that the
consideration was confined to test the legality and correctness
of the impugned order and the Competent Authority shall not
be influenced by any of the observations herein above while
deciding the application afresh.
(vi) All contentions of all the parties are expressly kept open
for consideration.
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32.
The Petition is allowed. Rule is accordingly made
absolute.
(DR. NEELA GOKHALE, J)
33.
After the Judgment and Order was pronounced, Mr.
Yatin Shah, learned counsel appearing for the Respondent
No.12, and Mr. Udayasankar Samudrala, learned counsel
appearing for the Respondent No.3, sought a stay of this
Judgment and Order for a period of four weeks from today.
34.
For the reasons mentioned in the Judgment and Order
and also since the impugned order was passed way back in
the year 2014, I am not inclined to stay the present Judgment
and Order.
(DR. NEELA GOKHALE, J)
Digitally
signed by
SHAMBHAVI
NILESH
SHIVGAN
Date:
2026.02.25
19:04:47
+0530
SHAMBHAVI
NILESH
SHIVGAN
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