Bombay High Court
Nusli Neville Wadia Administrator Of … vs Ijimama Imitation Jwellery Market … on 24 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:9375
wp14690-2022 & connected-J.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14690 OF 2022
Nusli Neville Wadia,
SHABNOOR Administrator of Estate of Late
AYUB
PATHAN E.F. Dinshaw, having office at
Digitally signed by
C-1, Wadia International Center,
SHABNOOR AYUB
PATHAN Pandurang Budhkar Marg,
Date: 2026.02.24 Prabhadevi, Mumbai 400 025
12:14:30 +0530 ... Petitioner
V/s.
1. Ijimima - Imitation Jewellery
Market Co-operative Society,
Raheja Metroplex, Link Road,
Malad (West), Mumbai 400 064
2. Ivory Properties and Hotels Ltd.,
having office at Construction House
"A", First Floor, 24th Road, Khar,
Mumbai 400 052
3. Radhakrishna Properties Pvt. Ltd.,
having office at Construction House
"B" First Floor, 24th Road, Khar,
Mumbai 400 052
And also at
Raheja Centre Point, 294, C.S.T. Road,
Near Mumbai University,
Off. Bandra-Kurla Complex,
Santacruz (East), Mumbai 400 098
4. Ijimima - Imitation Jewellery
Manufacturers Association,
Shop No.10, Nilanjana Coop.
Housing Society Ltd., Marve Road,
Malad (West), Mumbai 400 064
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5. Building No.1
6. Building No.2
7. Building No.3
8. Building No.5
9. Building No.6
10. Building No.7
11. Building No.8
12. Building No.9
13. Building No.10,
Raheja Metroplex, Link Road,
Malad (West), Mumbai9 400 0645
14. The Competent Authority & District
Deputy Registrar, Cooperative
Mumbai City (4), Bhandari Bank
Building, 2nd Floor, P.L. Kale Guruji
Marg, Dadar (West),
Mumbai 400 028 ... Respondents
WITH
WRIT PETITION NO.1584 OF 2024
Radhakrishna Properties Pvt. Ltd.,
a company registered under the provisions
of Companies Act, 1956, and having
office at Raheja Centre Point, 294,
CST Road, New Mumbai University,
Off. Bandra Kurla Complex,
Santacruz (East), Mumbai 400 098 ... Petitioner
V/s.
1. District Deputy Registrar, Cooperative
Mumbai City (4), Competent
Authority, having his office at
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Bhandari Bank Building, 2nd Floor,
P.L. Kale Guruji Marg, Dadar (West),
Mumbai 400 028
2. Ijimima Imitation Jewellery
Market Co-operative Society,
a Cooperative Society, duly registered
under the provisions of Maharashtra
Cooperative Societies Act, 1960, and
having its registered office at
Raheja Metroplex, Link Road,
Malad (West), Mumbai 400 064
3. Imitation Jewellery Manufacturers
Association, registered under the
provisions of Society Registration
Act, 1860 and having its registered
office at Shop No.10, Nilanjana Coop.
Housing Society Ltd., Marve Road,
Malad (West), Mumbai 400 064
4. Nusli Neville Wadia,
Administrator of Estate of Late
E.F. Dinshaw, having office at
C-1, Wadia International Center,
Pandurang Budhkar Marg,
Prabhadevi, Mumbai 400 025
5. Ivory Properties and Hotels Ltd.,
also a Company registered under
the provisions of Companies Act,
1956, and having its office at
Plot No.C-30, Block-G, Opp. SIDBI,
Bandra Kurla Complex,
Bandra (East), Mumbai 400 051 ... Respondents
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AND
WRIT PETITION NO.112 OF 2023
Ivory Properties and Hotels Ltd.,
also a Company incorporated under
the provisions of Companies Act,
1956, and having its office at
Plot No.C-30, Block-G, Opp. SIDBI,
Bandra Kurla Complex,
Bandra (East), Mumbai 400 051 ... Petitioner
V/s.
1. The District Deputy Registrar,
Cooperative Societies, Dadar,
Mumbai City (4),
(Competent Authority),
Bhandari Bank Building, 2nd Floor,
P.L. Kale Guruji Marg, Dadar (West),
Mumbai 400 028
2. Ijimima Imitation Jewellery
Market Co-operative Society,
Raheja Metroplex, Link Road,
Malad (West), Mumbai 400 064
3. Radhakrishna Properties Pvt. Ltd.,
having office at Construction House
"B" First Floor, 24th Road, Khar Road,
Khar, Mumbai 400 052
4. Nusli Neveille Wadia,
Administrator of Estate of Late
E.F. Dinshaw, having office at
C-1, Wadia International Center,
Pandurang Budhkar Marg,
Prabhadevi, Mumbai 400 025,
Maharashtra & Registered Office
at Churchgate, New Marine Lines,
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Mumbai 400 020
5. Imitation Jewellery Manufacturers
Association,Shop No.10,
Nilanjana Coop. Housing Society Ltd.,
Marve Road, Malad (West),
Mumbai 400 064
6. State of Maharashtra,
Mantralaya, Mujmbai 400 202
7. Union of India,
Ministry of Law and Justice,
Aaykar Bhavan, Annex Building,
2nd Floor, New Marine Lines,
Mumbai 400 020 ... Respondents
Mr. Navroz Seervai, Senior Advocate with Ms. Meena
Doshi, Mr. Hasan Mushabber i/by Negandhi Shah &
Himayatullah for the petitioner in WP/14690/2022.
Mr. Girish Godbole, Senior Advocate with Mr. Aniruth
Haryeni, Mr. Hemanta, Mr. Rahil Shah i/by Veritas
Legal for the petitioner in WP/112/2023 & for
respondent No.2 in WP/146790/2022.
Mr. Bharat Zaveri with Ms. Aishwaryajeeta Tawde i/by
Kanga & Co., for the petitioner in WP/15842/24 & for
respondent No.3 in WP/14690/2022 & WP/112/2023.
Mr. Mayur Khandeparkar with Mr. Viraj Parikh i/by Mr.
Dharmesh S. Jain for respondent No.1 in WP/14690/
2022 & for respondent No.2 in WP/1584/2024 &
WP/112/2023.
Ms. A.A. Nadkarni, AGP for State in WP/14690/2022.
Ms. Mamta S. Srivastava, AGP for State in
WP/1584/2024.
Mr. P.V. Nelson Rajan, AGP for State in WP/112/2023.
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CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 4, 2026.
PRONOUNCED ON : FEBRUARY 24, 2026
JUDGMENT:
1. The present writ petitions have been instituted by Nusli
Neville Wadia, Radhakrishna Properties Pvt. Ltd., and Ivory
Properties and Hotels Pvt. Ltd., challenging the Order of Unilateral
Deemed Conveyance dated 29th August 2022 passed by the
District Deputy Registrar, Co-operative Societies (4), Mumbai City,
acting as the Competent Authority under Section 11 of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963. By the
said order, the Competent Authority has granted deemed
conveyance in favour of IJMIMA – Imitation Jewellery Market Co-
operative Society in respect of a portion of land admeasuring
16,747.19 sq. meters together with RG area admeasuring 2,955.39
sq. meters, constituting 22% of the total area admeasuring 89,056
sq. meters forming part of land bearing CTS No. 1406/A/14
situated at Village Malad, Taluka Borivali, District Mumbai
Suburban, located at Link Road, Malad (West), Mumbai .
2. The material facts according to petitioners giving rise to the
present proceedings are as follows. Nusli Neville Wadia, acting as
Administrator of the Estate of late Neville Wadia through Eduljee
Framroze Dinshaw (hereinafter referred to as “Wadia”), was the
absolute owner of land bearing CTS No. 1406A/14 admeasuring
89,056 sq. metres situated at Village Malad, Taluka Borivali,
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District Mumbai Suburban, at Link Road, Malad (West), Mumbai.
The said property is hereinafter referred to as the “Larger
Property”. Being desirous of developing the Larger Property, Wadia
entered into an Agreement dated 2nd January 1995 with Ivory
Properties and Hotels Private Limited (“Ivory Properties”),
whereby Ivory Properties was appointed as Project Co-ordinator
for development of the said land. The Agreement contemplated
phased development of the Larger Property in segments and not as
one composite project. It was expressly agreed that Wadia would
transfer title in respect of each segment directly to the purchasers
along with delivery of physical possession. It was further provided
that upon completion of each segment, title would be conveyed to
the co-operative housing society or association of apartment
owners formed for that particular segment. The transfer of title
was thus envisaged to take place segment-wise and at different
stages depending upon completion of construction.
3. The Agreement further stipulated that juridical possession of
the land comprised in each segment would be handed over
simultaneously with delivery of the completed building. In
consideration thereof, Wadia was entitled to 12% of the gross
receipts towards land and building sale proceeds, whereas Ivory
Properties was entitled to 88%. Subsequently, by an Agreement
dated 6th April 1995, Ivory Properties appointed RK Properties in
its place to undertake development of the Larger Property. The said
Agreement recorded that the units were to be sold on ownership
basis and that the buildings constructed would ultimately be
transferred to the co-operative society of purchasers. It further
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contemplated that Wadia would transfer full ownership of the
respective segments directly to such society. RK Properties
undertook responsibility for construction and handing over
possession, while Wadia retained an independent obligation to
transfer title simultaneously. Wadia accepted the said arrangement
and executed a Power of Attorney in favour of RK Properties
authorising it to perform obligations on his behalf. During the
period 2000-2001, RK Properties proposed construction of
Building No. 4 within the sanctioned layout of the Larger Property.
On 30th April 2003, the Municipal Corporation of Greater Mumbai
sanctioned a layout known as “Raheja Metroplex” comprising
Building Nos. 1 to 10. The last amended sanctioned plan dated
11th February 2005 depicted the entire layout and recorded the
FSI proposed to be utilised for all ten buildings. It is material to
note that under the MOFA, once flats are sold on the basis of a
sanctioned layout, such layout cannot be altered without consent
of the flat purchasers.
4. Prior thereto, on 22nd November 2002, a MOU was executed
between Imitation Jewellery Manufacturers’ Association
(“Association”) and RK Properties, whereby it was agreed that
units in Building No. 4 would be sold exclusively to members of
the Association. A Supplementary MOU dated 15th April 2003 was
thereafter executed. In or about 2005, Wadia and RK Properties
executed multiple Agreements for Sale with members of the
Association in respect of units in Building No. 4. The said
Agreements were duly stamped and registered and were governed
by MOFA. The Agreements reiterated the obligation of Wadia to
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transfer title in the segment of the Larger Property and recorded
that 12% of the total consideration was payable to Wadia towards
land consideration. It was further provided that 1.5% was payable
to RK Properties upon transfer of title in favour of the society to be
formed. The Agreements contemplated formation of a co-operative
housing society and provided that Wadia would transfer title in the
demarcated land simultaneously with handing over possession.
Certain clauses, including Clauses 22 and 24, contemplated
leasehold rights and postponement of conveyance until completion
of the entire layout. However, such stipulations were inconsistent
with MOFA and contrary to the earlier contractual framework.
Construction of Building No. 4 was completed in the year 2005,
whereupon an Occupation Certificate was issued and possession of
the units was handed over to the purchasers. Thereafter, on 27th
May 2009, IJMIMA Imitation Jewellery Market Co-operative
Society (“Society”) came to be incorporated.
5. From the period 2008-2009 onwards, disputes arose
between Wadia, Ivory Properties and RK Properties, resulting in
multiple suits pending before this Court. The Society and its
members are not parties to the said proceedings. It is also an
admitted position that for nearly two decades after completion of
Building No. 4, no further development has taken place in respect
of Building Nos. 1 to 3 and 5 to 10. On 24th December 2021, the
Society issued a notice calling upon Wadia, Ivory Properties and
RK Properties to execute conveyance in its favour. As the said
demand was not complied with, the Society filed Application No.
153 of 2022 on 13th April 2022 before the District Deputy
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Registrar (4), Mumbai City, acting as the Competent Authority
under Section 11 of MOFA, seeking unilateral deemed conveyance.
The Society sought conveyance of 16,747 sq. metres of land
proportionate to the FSI consumed for Building No. 4 together
with 2,955 sq. metres representing 22% proportionate share of the
recreational ground area, on the basis of the Architect’s Certificate
dated 6th April 2022 prepared in accordance with the sanctioned
plan and Government Resolution dated 22nd June 2018. Public
notice of the Application was issued on 29th April 2022. Wadia
and Ivory Properties appeared in the proceedings, whereas RK
Properties remained absent. Upon hearing the parties and
considering the material placed on record, the Competent
Authority, by Order dated 29th August 2022, allowed the
Application and granted unilateral deemed conveyance in favour
of the Society. The Competent Authority held, inter alia, that the
Society had complied with statutory requirements; contractual
clauses inconsistent with MOFA could not defeat statutory rights;
development of remaining buildings could not indefinitely
postpone conveyance; Wadia, Ivory Properties and RK Properties
were promoters within the meaning of MOFA; consideration had
been received by them; there was no misjoinder of parties; the
Government Resolution dated 22nd June 2018 was applicable; no
lease having been executed, freehold conveyance was warranted;
and the Real Estate (Regulation and Development) Act, 2016 had
no retrospective application. Being aggrieved by the said Order
dated 29th August 2022, the Petitioners have preferred the present
Writ Petitions challenging the grant of unilateral deemed
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conveyance.
6. Mr. Bharat Zaveri, learned Advocate appearing for the
Petitioner in Writ Petition No. 15842 of 2024, submits that a plain
reading of Paragraphs 4 and 14(A) of the Impugned Order shows
that the same merely records issuance of notice and does not
record due service of notice upon the Petitioner. It is contended
that, in law, issuance of notice and valid service thereof are distinct
and independent requirements. In the absence of a specific finding
regarding proper service, the proceedings stand vitiated on
account of violation of principles of natural justice. Learned
counsel further submits that no Affidavit in Reply has been filed on
behalf of the Office of the District Deputy Registrar (Respondent
No.1) to demonstrate compliance with Rule 13(2) of the
applicable Rules. It is also pointed out that Respondent No. 5 has
not filed any Affidavit in Reply dealing with Exhibits ‘F’ and ‘G’
annexed to the Petition. According to the Petitioner, in the absence
of pleadings supported by affidavit, the record does not establish
compliance with mandatory procedural requirements.
7. It is further submitted that though the Society has placed on
record a compilation of documents, the Deemed Conveyance
Application appearing at Serial No. 13 is incomplete. Learned
counsel contends that a statutory application must be complete in
all material particulars as prescribed under the Rules, and any
defect or incompleteness therein renders the proceedings initiated
thereunder unsustainable. Reference is made to Form ‘X’ annexed
in Writ Petition No.14690 of 2022, and it is submitted that the said
Form is not in conformity with the format prescribed under Rule
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13(2). In the absence of any amendment to the Rules or lawful
justification, service purportedly effected on the basis of a
defective Form ‘X’ is stated to be invalid in law. Without prejudice
to the aforesaid submissions, it is further urged that the notice was
addressed to the old registered office of the Petitioner at
Construction House-B, First Floor, 24th Road, Khar, Mumbai –
400052, despite the Petitioner having changed its registered office
in May 2005. Service effected at an old address, despite change in
the registered office, cannot be treated as valid or proper service in
law.
8. Learned counsel further submits that the Petitioner was not
served at its prevailing registered office. As per Form ‘X’, a copy of
the Deemed Conveyance Application along with all annexures was
required to be served upon the Petitioner, which requirement,
according to the Petitioner, has not been complied with. It is
contended that publication of public notice in a newspaper
constitutes substituted service and cannot be resorted to as a
matter of course. The Impugned Order itself records that Form ‘X’
and the Public Notice bear the same date, namely 25th April 2022.
It is therefore submitted that Respondent No. 1 ought to have
passed a specific order recording satisfaction and permitting
substituted service before resorting to newspaper publication.
Mere publication, without prior satisfaction and order, cannot
amount to compliance with Rule 13(2). Reliance is placed on the
Judgment dated 27th February 2024 passed by this Court in Shree
Giridhar Enterprise v. Shyam Sarita Co-operative Housing Society
Ltd., wherein it has been held that substituted service must be
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preceded by due satisfaction and an appropriate order. On this
basis, it is submitted that non-compliance with the mandatory
procedure vitiates the proceedings. In light of the aforesaid
submissions, learned counsel for the Petitioner prays that: (a) the
Impugned Order be quashed and set aside; (b) Deemed
Conveyance Application No.153 of 2022 be restored to the file of
Respondent No. 1; (c) the Petitioner be granted liberty to file a
Reply on merits; and (d) Respondent No. 1 be directed to decide
the Deemed Conveyance Application afresh after granting an
opportunity of hearing to all concerned parties within such period
as this Court may deem fit and proper.
9. Mr. Godbole, learned Senior Advocate appearing for the
Petitioner in Writ Petition No. 112 of 2023 and for Respondent No.
2 in Writ Petition No. 14690 of 2022, submits that the District
Deputy Registrar (“DDR”) lacked jurisdiction to grant a conveyance
of sale contrary to the Agreement executed under Section 4 of the
MOFA. It is contended that the statutory authority cannot confer
any right higher or different from that contemplated under the
Section 4 MOFA Agreement executed between the parties.
10. Learned Senior Counsel submits that Wadia, as owner of the
property, had appointed the Petitioner as Project Co-ordinator
under an Agreement dated 2nd January 1995. Clause 2 of the said
Agreement specifically contemplated grant of a lease in respect of
the immovable property, the terms whereof were set out in the
draft annexed thereto. Further, under Clause 3(a), the Owner
expressly retained title to the immovable property. It is therefore
submitted that the foundational contractual document
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contemplated only leasehold rights and did not envisage
conveyance of absolute ownership. It is further submitted that
under the Agreement for Sub-Lease dated 6th April 1995 executed
by the Petitioner in favour of RK Properties, there was a clear
stipulation for grant of a sub-lease. Clause 1(1) thereof expressly
provided that only a sub-lease was to be granted to the developer,
namely RK Properties. According to the Petitioner, the contractual
arrangement consistently proceeded on the basis of leasehold
rights.
11. Learned Senior Counsel further submits that the MOU dated
22nd November 2002 executed between RK Properties and
IJMIMA Imitation Jewellery Market Co-operative Society Limited
(“IJMA”) specifically contemplated grant of a long-term lease.
Clause 8(g) recorded that a long-term lease at a nominal rent of
Rs. 1/- per annum would be granted. Clause 18 provided for grant
of a long-term lease in respect of land admeasuring not less than
6900 sq. metres in favour of the Association of Unit Holders, and
Clause 19 reiterated that grant of lease constituted a condition of
the contract. The Supplementary MOU dated 15th April 2003
modified the area to not less than 7240 sq. metres but retained the
stipulation regarding grant of long-term lease. It is therefore
submitted that the MOU and Supplementary MOU, forming the
foundation of the contractual relationship, consistently
contemplated only leasehold rights.
12. It is submitted that Recital V of the Section 4 MOFA
Agreement expressly refers to and incorporates the terms of the
MOU and Supplementary MOU. Clauses 22 and 24 of the said
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Agreement crystallised the right of the Association of Flat
Purchasers to obtain only a lease for a period of 999 years. Clause
28 is stated to restrict the rights of flat purchasers. Even Clause
41(d), relied upon by the Society, contemplates transfer of
demarcated land “in the manner aforesaid”, thereby incorporating
the concept of lease and not an outright conveyance of sale. On
this basis, it is contended that the DDR could not have granted
freehold conveyance contrary to the express contractual
stipulations.
13. In support of the aforesaid submissions, reliance is placed
upon the judgment of this Court in A. H. Wadia Trust v. State of
Maharashtra, (2023) 5 BCR 418, wherein it has been held that the
authority cannot grant anything beyond what is contemplated
under the Section 4 MOFA Agreement. Reliance is also placed on
Shanti Prakash v. District Deputy Registrar, 2024 SCC Online
Bombay 2899, wherein it has been reiterated that deemed
conveyance must strictly conform to the Section 4 MOFA
Agreement. Further reliance is placed on New Sonal Industries
Premises Ltd. v. District Deputy Registrar, 2025 SCC Online
Bombay 391, wherein this Court has held that where the
agreement contemplates assignment of leasehold rights, the
competent authority ought to grant only assignment of leasehold
rights and not freehold conveyance.
14. Learned Senior Counsel further submits that there has been
deliberate suppression of material documents, namely the MOU
dated 22nd November 2002 and the Supplementary MOU dated
15th April 2003, which were not annexed to the Deemed
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Conveyance Application despite being integral to the Section 4
MOFA Agreement. It is submitted that under the MOU, the total
consideration was fixed at Rs. 43,38,18,000/- and IJMA had paid
10% earnest money. Clauses 10, 11, 14 and 17 imposed
obligations upon IJMA to nominate its members and make balance
payments. The transaction, according to the Petitioner, was in the
nature of a package construction contract wherein IJMA effectively
stepped into the role of a developer and assumed obligations akin
to a promoter under MOFA. Suppression of these documents, it is
contended, prevented the DDR from appreciating the true
contractual position and resulted in an erroneous order. It is
further submitted that there was deliberate suppression regarding
the change of registered office address of Radhakrishna. According
to the Petitioner, IJMA was aware that RK Propertieshad shifted its
registered office from Khar to Kalina, Santacruz, as early as May
2005. Reliance is placed on a letter dated 11th May 2005 issued by
IJMA to RK Propertiesat its Kalina address. It is also pointed out
that the Kalina address was reflected in the application for
registration of the Society. Despite such knowledge, notice was
issued to the old address, thereby depriving the Petitioner of an
effective opportunity to contest the proceedings.
15. The Petitioner further submits that it was not a party to the
MOU or the Supplementary MOU and is presently engaged in
litigation with RK Properties before this Court. In the absence of
disclosure of the said documents, the Petitioner was unable to
draw attention to the clauses restricting the rights of flat
purchasers to leasehold rights. It is therefore contended that the
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conduct of the Society amounts to suppression of material facts
and fraud, thereby vitiating the Impugned Order.
16. Lastly, it is submitted that Respondent No. 2 Society is not
entitled to seek deemed conveyance under the scheme of MOFA.
According to the Petitioner, the statutory framework contemplates
formation of a housing society or a premises society. Respondent
No. 2 is stated to be registered as a general society under Rule
10(9)(c) of the Maharashtra Co-operative Societies Rules, 1961. It
is contended that the expression “housing society” under Section
2(16) of the Maharashtra Co-operative Societies Act, 1960 refers
to tenant ownership or tenant co-partnership societies as
contemplated under Rule 10(5). The expression “co-operative
society” used in MOFA, it is submitted, cannot be interpreted to
include a general society not falling within the definition of a
housing society. A conjoint reading of Sections 10 and 11 of MOFA
with Section 27 and the Schedule to the Maharashtra Apartment
Ownership Act, 1970, according to the Petitioner, indicates
legislative intent to vest such rights only in a housing society or
apartment owners’ association of that nature. Hence, Respondent
No. 2, being a general society, cannot claim deemed conveyance
under MOFA. In view of the aforesaid submissions, it is contended
that the Impugned Order granting freehold conveyance is contrary
to the contractual framework, the statutory scheme and binding
judicial precedents, and is therefore liable to be set aside.
17. Mr. Navroz Seervai, learned Senior Advocate appearing for
the Petitioner in Writ Petition No. 14690 of 2022, submits that the
principal issue arising in the present Petition concerns the
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interpretation and application of Sections 11 and 16 of the MOFA
and the Government Resolution dated 22nd June 2018. It is
contended that the findings recorded in the impugned order are
contrary to the statutory mandate contained in Section 11(1) of
MOFA, which requires the promoter to execute all relevant
documents in accordance with the agreement executed under
Section 4 and, where no period is specified, within the prescribed
period. According to the Petitioner, the statutory language being
clear and unambiguous must receive its plain and literal meaning.
The contention of the Society that a purposive interpretation ought
to be adopted on the ground that MOFA is a beneficial legislation
is stated to be misconceived. It is submitted that where the
statutory language is explicit, legislative intent must be gathered
from the words employed, and the contract executed between the
parties in conformity with law remains binding, particularly in
view of the mandate under Section 11(1) requiring conveyance to
be executed strictly in accordance with the Section 4 Agreement.
18. Learned Senior Counsel submits that the parent Agreement
dated 2nd January 1995, particularly Clause 2 thereof, has been
completely ignored by the Deputy District Registrar. The said
clause expressly provides that an essential term of the Agreement
was grant of a lease of the immovable property in favour of the
Company, on terms and conditions set out in the annexed form. It
is therefore submitted that the contractual arrangement from
inception contemplated grant of leasehold rights and not absolute
conveyance. In furtherance thereof, a Sub-Lease Agreement dated
6th April 1995 was executed. It is also submitted that the MOU
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dated 22nd November 2002 and the Supplementary MOU dated
15th April 2003 executed between Respondent No. 3 and
Respondent No. 4 Association contain express stipulations
regarding grant of lease in respect of the scheduled land.
19. In the aforesaid background, learned Senior Counsel submits
that the contention of the Society that Clauses 3(d), 8, 9, 11 and
12 of the Agreement require conveyance of each building on
demarcated land is erroneous. According to the Petitioner, the
expression “respective segments” occurring in Clause 3(d) must be
read conjointly with Schedules I and II of the Agreement. A
combined reading of the relevant clauses, it is submitted, clearly
demonstrates that the intention of the parties was that transfer of
title would be effected only in favour of the Apex Body upon
completion of the entire development project. It is further
submitted that the Section 4 MOFA Agreement expressly refers to
and incorporates the parent Agreement dated 2nd January 1995,
and consequently the Respondent Society remains bound by the
contractual stipulation that only a lease would be executed in
favour of the Apex Body.
20. It is further submitted that Section 11(1) of MOFA prescribes
the stage and time at which the Apex Society can claim
conveyance. In support of this submission, reliance is placed upon
the judgment of this Court in Harish Vijaysingh Bhatia v. District
Deputy Registrar, 2025 SCC Online Bom 1981, particularly
paragraph 66 thereof, which according to the Petitioner supports
the contention regarding the stage at which conveyance may be
sought.
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21. The Petitioner further submits that Section 16 of MOFA has
been completely overlooked by the Competent Authority. It is
contended that detailed submissions based on Section 16 were
made in the reply as well as in written submissions, yet the
impugned order does not advert to the same. Section 16, it is
submitted, provides that the provisions of MOFA, except where
otherwise provided, shall be in addition to the provisions of the
Transfer of Property Act, 1882 and shall operate notwithstanding
anything contrary contained in any contract. According to the
Petitioner, the said provision does not override the Transfer of
Property Act but supplements it. Consequently, the Competent
Authority was required to consider Section 54 of the Transfer of
Property Act while determining the nature of rights liable to be
conveyed.
22. It is submitted that the Government Resolution dated 22nd
June 2018 is squarely applicable to the present case. However, the
finding of the Competent Authority that the Society had complied
with the said Government Resolution is stated to be erroneous. It is
contended that the Authority failed to consider clauses (iv)(1) and
(iv)(2) thereof, which provide that where multiple buildings exist
on a single plot with separate societies and construction of certain
buildings remains incomplete, deemed conveyance in respect of
completed buildings ought to be restricted to proportionate
undivided share in occupancy rights based on plinth area, ground
coverage and appurtenant land, including common services, roads
and open spaces. It is further submitted that the Government
Resolution provides that where TDR is utilised, conveyance must
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be granted with reference to plinth area and appurtenant land.
23. Learned Senior Counsel submits that grant of conveyance
under Section 11 necessarily comprises two components, namely
the land and the building constructed thereon. As regards the land
component, it is contended that a harmonious reading of all
relevant agreements demonstrates that, at the highest, only a
deemed lease could have been granted and not a freehold
conveyance. It is therefore submitted that the Competent Authority
lacked jurisdiction to grant freehold conveyance in derogation of
contractual stipulations.
24. The reliance placed by the Society on the judgment in
Sarayu Properties & Hotels Pvt. Ltd. v. District Deputy Registrar
and the judgment in Harish Vijaysingh Bhatia is stated to be
misplaced, as according to the Petitioner neither decision considers
the interplay between Section 16 of MOFA and Section 54 of the
Transfer of Property Act, nor the Government Resolution dated
22nd June 2018. It is further submitted that reliance on the
judgment of the Supreme Court in Arun Kumar H Shah (HUF) v.
Avon Arcade CHS Ltd (2025) 7 SCC 249 is misconceived.
Reference is made to paragraph 25 of the said judgment, wherein
the Supreme Court has held that proceedings under Section 11 are
quasi-judicial and summary in nature and do not conclusively
determine title. Paragraph 24, it is submitted, emphasises that the
Competent Authority must record reasons while passing an order
under Section 11(3). According to the Petitioner, the impugned
order lacks reasons in respect of compliance with the Government
Resolution dated 22nd June 2018, consideration of the Architect’s
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Certificate, and applicability of Section 16 and the contractual
clauses governing the nature and timing of conveyance.
25. As regards the building component, it is submitted that the
Resolution mandates that conveyance cannot exceed the plinth
area and appurtenant land. According to the Petitioner, the
Competent Authority has failed to apply its mind to the plinth area
of Building No. 4 and the corresponding appurtenant land. The
grant of 16,737.19 sq. metres as freehold land is therefore stated
to be legally and factually unsustainable. It is further submitted
that determination of the recreational ground area is erroneous,
particularly in view of the MOU which provides for demarcated
land admeasuring not less than 6900 sq. metres. The Agreement
for Sale is also stated to contemplate transfer of demarcated land
only on lease basis.
26. The Petitioner further submits that the Society has made
misleading statements in its Application, including an incorrect
assertion that Building Nos. 5 to 14 are constructed buildings. It is
contended that the Society falsely claimed compliance with all
statutory requirements despite deficiencies, including failure to
produce registered agreements with each unit holder and
suppression of the MOU and Supplementary MOU. The reliance
placed on Rule 13(4), according to the Petitioner, is misconceived
and constitutes an attempt to justify suppression of material
documents. It is submitted that the law is well settled that
suppression of material facts vitiates judicial proceedings.
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27. In support of the aforesaid contention, reliance is placed
upon the judgments of the Supreme Court in Bhaskar Laxman
Jadhav v. Karamveer Kakasaheb Wagh Education Society 2013(11)
SCC 531, Prestige Lights Ltd. v. State Bank of India 2007(8) SCC
33, and Ramjas Foundation v. Union of India, 2010(4) SCC 3
which lay down that suppression of material facts and false
statements on oath disentitle a party from equitable relief. On the
basis of the aforesaid submissions, it is prayed that the Petition be
allowed and the impugned order dated 29th August 2022,
together with the certificate of even date, be quashed and set
aside.
28. Mr. Mayur Khandeparkar, learned Advocate appearing for
Respondent No. 1 in Writ Petition No. 14690 of 2022 and for
Respondent No. 2 in Writ Petition No. 1584 of 2024 and Writ
Petition No. 112 of 2023, submits that All the Petitioners have
contended that Clause 22 of the MOFA Agreements for Sale
contemplates grant of a perpetual lease and not execution of
conveyance. He submits that such contention is contrary to the
settled position of law and is liable to be rejected.
29. Referring to the Agreement dated 2nd January 1995
executed between Wadia and Ivory Properties, he submits that
Clause 3(d) thereof records that Wadia agreed to transfer title in
the different segments of the Larger Property directly to the
respective purchasers along with physical possession. Clause 8
further provides that Wadia would transfer title in the segments of
the Larger Property directly in favour of the co-operative housing
society or apartment owners’ association, and Ivory Properties
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would correspondingly transfer title in the buildings constructed
thereon to the same entity. Clause 12 records the revenue-sharing
arrangement, under which Wadia was entitled to 12% of the gross
receipts towards the price of land and sale of buildings. According
to him, these provisions clearly indicate an obligation to transfer
title and not merely leasehold rights.
30. He further relies upon the Agreement for Sub-Lease dated
6th April 1995 executed between Ivory Properties and RK
Properties. It is submitted that Clause 6 thereof records the nature
of the development project and provides that units would be sold
by RK Properties on ownership basis, that the buildings
constructed would ultimately be transferred to the co-operative
society of purchasers, and that Wadia would transfer full
ownership of the respective segments of the Larger Property
directly in favour of the co-operative society. Clause 11
contemplates that RK Properties would have an independent
obligation to construct and hand over possession of the buildings,
whereas Wadia would independently transfer title and juridical
possession of the land comprised in the relevant segment
simultaneously with delivery of possession. According to him, the
contractual framework consistently envisages transfer of title.
31. He submits that Wadia’s obligation to convey the different
segments of land, as contained in the aforesaid agreements, has
been reiterated and incorporated in Recital h(vi) and Recital (i) of
the MOFA Agreements for Sale. It is further submitted that specific
clauses in the MOFA Agreements for Sale also provide for transfer
of title, including Clause 4(A)(i), which records that 12% of the
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consideration represents contribution towards transfer of interest
in the land, and Clause 41(d), which expressly records that Wadia
shall transfer title in the land. He further submits that Wadia is in
direct privity with the MOFA Agreements for Sale, being a
signatory thereto and having received 12% of the total
consideration from each unit purchaser. It is therefore contended
that Wadia is a promoter within the meaning of MOFA, having
caused and facilitated construction of Building No. 4, and as such
was obligated to convey his right, title and interest in the land.
According to him, Wadia cannot be permitted to fragment such
title or retain ownership while conveying limited rights. He
submits that Section 11 of MOFA obligates the promoter to convey
whatever right, title and interest he possesses in the property to
the society, and does not contemplate fragmentation of ownership
rights. Reliance is placed on Clause 13 of Form V under the MOFA
Rules, which is stated to possess statutory character and mandates
conveyance of the promoter’s entire interest. It is contended that
any contractual clause contrary to this statutory principle must be
disregarded by the Competent Authority. In support, reliance is
placed upon the decisions in Sarayu Properties v. DDR and Anr.
dated 2nd July 2024 in Writ Petition No.10404 of 2024 and
Haresh Bhatia v. Vijay CHS Limited 2025 SCC Online Bom 1981,
wherein this Court has affirmed the aforesaid interpretation. On
the aforesaid basis, he submits that Wadia, being a promoter under
MOFA, cannot be permitted to fragment his title and convey only
leasehold rights while retaining ownership of the land.
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32. He further submits that the Deemed Conveyance Application
is not premature. The contention of the Petitioners that, under
Clause 22 of the MOFA Agreements for Sale, conveyance could
arise only after completion of the entire layout is stated to be
misconceived. According to him, it is settled law that conveyance
cannot be indefinitely delayed on the pretext of future
construction. It is submitted that Building No. 4 was completed in
the year 2005 and no further construction has taken place for
nearly two decades thereafter. Disputes between Wadia, Ivory
Properties and RK Properties have been pending since 2008. In
these circumstances, he contends that further development of the
Larger Property is not imminent within the reasonably foreseeable
future. In the aforesaid factual background, he submits that
promoters cannot indefinitely postpone conveyance on the ground
that the larger layout remains incomplete, as such conduct would
defeat the statutory scheme of MOFA.
33. He further submits that the grievance of the promoters
regarding alleged prejudice to their right to carry out additional
construction is misconceived. Firstly, no additional construction is
reflected in the sanctioned plan pertaining to the Subject Property
and Building No.4. Secondly, any such grievance, even if available,
can only be agitated in appropriate civil proceedings. Reliance is
placed on the judgment in PR Enterprises v. Competent Authority.
He submits that even the contractual documents do not
contemplate postponement of conveyance until completion of the
entire layout, but rather provide for segment-wise conveyance
upon completion of individual buildings. It is submitted that the
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inter se agreements between Wadia, Ivory Properties and RK
Properties clearly contemplate conveyance of different segments as
and when each building is completed, and not after completion of
the entire development. In this regard, reliance is placed on the
Agreement dated 2nd January 1995, wherein Clause 9 records that
development of the Larger Property was to occur in separate
segments and that transfer of title would accordingly take place at
different points in time. Clause 11(c) further provides that Wadia
would transfer title and juridical possession of the land comprised
in the concerned segment simultaneously with handing over of the
completed building.
34. Similarly, under the Agreement for Sub-Lease dated 6th April
1995, Clause 11 stipulates that Wadia would independently
transfer title and juridical possession of the land comprised in the
relevant segment simultaneously with delivery of possession by RK
Properties. He submits that these obligations were expressly
reiterated and incorporated in Recital h(vi) and Recital (i) of the
MOFA Agreements for Sale, thereby confirming the segment-wise
conveyance structure.
35. He further submits that the Competent Authority has granted
conveyance for the correct area after applying the Government
Government Resolution dated 22nd June 2018, and that the MOUs
between IJMIMA Association and RK Properties do not restrict the
entitlement of the Society. At the outset, it is contended that any
dispute regarding excess area granted under deemed conveyance
raises questions of title and entitlement which cannot be
adjudicated in writ jurisdiction and must be agitated in a civil suit.
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Reliance is placed upon the decision in Zainul Abedin v. Competent
Authority.
36. Without prejudice to the aforesaid, he submits that Clause 18
of the MOU and Clause 7 of the Supplementary MOU merely
prescribe a minimum area, as evidenced by the expression “not
less than”, and do not impose any ceiling or restriction on
entitlement to conveyance. He submits that the sanctioned plans
were obtained after execution of the MOU and Supplementary
MOU, and the MOFA Agreements for Sale were executed
thereafter. Consequently, the MOFA Agreements, having statutory
flavour and being later in point of time, govern the rights of the
parties and do not restrict the area for conveyance.
37. It is further submitted that the MOUs stand superseded by
the MOFA Agreements for Sale, and the rights of unit purchasers
must be determined on the basis of the latter.
38. He submits that though it was argued that a specific plan
defining the segment to be conveyed was annexed to the MOFA
Agreements, no such plan forms part of the registered agreements.
39. In any event, and without prejudice, he submits that the
Competent Authority has correctly applied the 2018 Government
Resolution. The last sanctioned plan dated 11th February 2005
contemplates ten buildings and provides the breakup of proposed
built-up area. He submitted an Architect’s Certificate dated 6th
April 2022 calculating entitlement based on the built-up area of
Building No. 4 vis-à-vis the total proposed built-up area. Based on
the said certificate, conveyance of 22% of the Larger Property was
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granted, which is in accordance with Clause B(iv)(1) of the 2018
Government Resolution .
40. It is submitted that none of the Petitioners disputed the
validity of the last sanctioned plan, the correctness of the
Architect’s calculations, or the conformity of the granted area with
the 2018 Government Resolution . He, therefore, contends that the
area granted under deemed conveyance is correct.
41. He further submits that joining Building Nos. 1 to 3 and 5 to
10 as proforma parties does not render the Application defective.
Since the Society was not aware of the exact status of third-party
rights, such impleadment was made by way of abundant caution.
It is submitted that the said error, if any, was rectified before the
Competent Authority when it was clarified that the other buildings
were not constructed. The Competent Authority has recorded this
fact in paragraph 14(h) of the impugned order. Hence, no
prejudice survives. He contends that misjoinder of parties is at best
a procedural defect and cannot be a ground to set aside an order
granting unilateral deemed conveyance, particularly when no
necessary party is shown to have been omitted.
42. As regards the contention that the Society is not registered as
a housing society, he submits that such distinction is irrelevant
under MOFA. Section 10 of MOFA does not prescribe the nature of
co-operative society to be formed and even contemplates
registration of a company. Further, since the definition of “flat”
under MOFA includes shops, offices and showrooms, not every
society formed under MOFA can be a housing society within the
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meaning of the Maharashtra Co-operative Societies Act.
Consequently, a general society cannot be excluded from seeking
deemed conveyance.
43. He further submits that the allegation of violation of
principles of natural justice qua RK Properties is untenable.
According to him, RK Properties was duly served with notice in
accordance with law. Notice was issued to RK Properties at the
address recorded in the MOFA Agreements for Sale and was
returned with the endorsement “Left Without Instructions”. This,
according to him, constitutes sufficient attempt at service. It is
further submitted that under Section 27 of the General Clauses
Act, service by registered post at the correct address raises a
presumption of due service. In addition, public notice was
published in newspapers. Hence, the contention that RK Properties
was not served is without merit. He submits that reliance placed
on communications showing a Kalina address is irrelevant, as no
formal intimation was given that the address recorded in the
MOFA Agreement had ceased to be operative. Existence of another
address does not invalidate service at the contractual address.
Reliance is placed on the decision in PR Enterprises v. Competent
Authority, wherein this Court held that service at the address
mentioned in the MOFA Agreement coupled with public notice is
sufficient compliance. Without prejudice, he submits that even
assuming invalid service, no case for setting aside the impugned
order is made out for additional reasons. It is submitted that Ivory
Properties and RK Properties belong to the same Raheja group and
are controlled by the lineal descendants of Lachmandas Raheja. RK
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Properties is stated to be a special purpose vehicle created for
development of the Larger Property, as reflected in the relevant
contractual documents. Since Ivory Properties was served and
participated in the proceedings, and both entities espouse identical
interests, he contends that effective representation existed before
the Competent Authority. He further submits that mere technical
violation of natural justice is insufficient to invalidate an order
unless substantial prejudice is demonstrated. Reliance is placed
upon the judgment of the Supreme Court in State of Uttar Pradesh
v. Sudhir Kumar Singh. It is pointed out that all grounds raised by
RK Properties have also been urged by Wadia and Ivory Properties
and were considered by the Competent Authority. Therefore, no
prejudice has been caused. He further submits that RK Properties
has already been terminated by Wadia and has only filed a suit for
specific performance in 2009 without obtaining any effective
interim relief. Accordingly, RK Properties cannot claim any
subsisting development right warranting interference. He denies
the allegation of suppression of the MOU dated 22nd November
2002 and the Supplementary MOU dated 15th April 2003 and
submits that the allegation of fraud is wholly unfounded.
44. In response, he submits that the sanctioned plans and MOFA
Agreements were executed subsequent to the MOUs; that rights
and obligations are governed by the Section 4 MOFA Agreements
for Sale, which supersede earlier arrangements; that the MOUs
were executed between RK Properties and the Association and not
with the Society or individual purchasers; and that proceedings
under Section 11 must conform to the prescribed format under the
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Rules and do not require annexing all documents. It is further
submitted that the MOUs are referred to in the recitals of the
MOFA Agreements and were therefore within the knowledge of
Wadia, who failed to invoke the procedure under Rule 13(4) for
production of documents. Consequently, the plea of suppression is
untenable. He therefore submits that the allegation of fraud and
suppression is baseless and cannot be invoked in the absence of
any material foundation. In view of the aforesaid submissions, he
prays that the present Writ Petitions be dismissed with costs.
Legal framework of MOFA
45. In order to effectively address the objections raised by the
promoters, it becomes necessary to examine the statutory scheme
of the Maharashtra Ownership Flats Act, 1963, together with the
Rules framed thereunder, in a comprehensive manner. The
controversy cannot be resolved by placing reliance upon isolated
clauses contained in private contractual arrangements. The issue
must be determined in the light of the legislative intent and the
manner in which the statute regulates and structures the legal
relationship between the promoter and the flat purchaser.
46. The Act was enacted with the object of regulating the
promotion of construction, sale, management and transfer of flats
on ownership basis within the State of Maharashtra. The
Statement of Objects and Reasons indicates that the legislation was
introduced to curb prevailing malpractices and abuses on the part
of promoters. Prior to the enactment of MOFA, flat purchasers
were frequently left without clear title, without the formation of a
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cooperative society, and without execution of conveyance of the
underlying land. The statute was therefore intended to remedy this
imbalance and to secure protection to flat purchasers by imposing
defined statutory obligations upon promoters.
47. Under Section 2(c) MOFA, the term “Promoter” has been
defined as under:
“(c) “promoter” means a person and includes a
partnership firm or a body or association of persons,
whether registered or not who constructs or causes to
be constructed a block or building of flats, or
apartments for the purpose of selling some or all of
them to other persons, or to a company, cooperative
society or other association of persons and includes his
assignees; and where the person who builds and the
person who sells are different persons, the term
includes both;”
48. Section 4 mandates entering into an agreement with flat
purchaser and registration thereof by a promoter before accepting
advance payment. Section 4 MOFA provides thus:
“4. Promoter before accepting advance payment or
deposit to enter into agreement and agreement to be
registered.–
(1) Notwithstanding anything contained in any other
law, a promoter who intends to construct or constructs
a block or building of flats all or some of which are to
be taken or are taken on ownership basis, shall, before,
he accepts any sum of money as advance payment or
deposit, which shall not be more than 20 per cent, of
the sale price enter into a written agreement for sale
with each of such persons who are to take or have
taken such flats and the agreement shall be registered33
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section referred to as “the Registration Act, 1908)” and
such agreement shall be in the prescribed form.
(1-A) The agreement to be prescribed under sub-
section (1) shall contain inter alia the particulars as
specified in clause (a); and to such agreement there
shall be attached the copies of the documents specified
in clause (b)–
(a) particulars– (i) if the building is to be
constructed, the liability of the promoter to construct it
according to the plans and specifications approved by
the local authority where such approval is required
under any law for the time being in force;
(ii) the date by which the possession of the flat is to
be handed over to the purchaser;
(iii) the extent of the carpet area of the flat including
the area of the balconies which should be shown
separately;
(iv) the price of the flat including the proportionate
price of the common areas and facilities which should
be shown separately, to be paid by the purchaser of
flat; and the intervals at which instalments thereof may
be paid;
(v) the precise nature of the organisation to be
constituted of the persons who have taken or are to
take the flats; (vi) the nature, extent and description of
limited common areas and facilities; (vii) the nature,
extent and description of limited common areas and
facilities, if any; and
(viii) percentage of undivided interest in the common
areas and facilities appertaining to the flat agreed to be
sold.
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(ix) statement of the use for which the flat is intended
and restriction on its use, if any;
(x) percentage of undivided interests in the limited
common areas and facilities, if any, appertaining to the
flat agreed to be sold;”
49. Section 10 MOFA imposes obligation on the promoter to take
steps for formation of cooperative society or company and provides
thus:
“10. Promoter to take steps for formation of
cooperative society or Company.–(1) As soon as a
minimum number of persons required to form a
cooperative society or a company have taken flats, the
promoter shall within the prescribed period submit an
application to the Registrar for registration of the
organisation of persons who take the flats as a
cooperative society or, as the case may be, as a
company; and the promoter shall join, in respect of the
flats which have not been taken, in such application for
membership of a cooperative society or as the case may
be of a company. Nothing in this section shall affect the
right of the promoter to dispose of the remaining flats
in accordance with the provisions of this Act:
Provided that, if the promoter fails within the
prescribed period to submit an application to the
Registrar for registration of society in the manner
provided in the Maharashtra cooperative Societies Act,
1960 (Mah. Act 24 of 1961), the competent authority
may, upon receiving an application from the persons
who have taken flats from the said promoter, direct the
District Deputy Registrar, Deputy Registrar or, as the
case may be, Assistant Registrar concerned, to register
the Society:
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Provided further that, no such direction to
register any society under the preceding proviso shall
be given to the District Deputy Registrar, Deputy
Registrar or, as the case may be, Assistant Registrar, by
the competent authority without first verifying
authenticity of the applicants, request and giving the
concerned promoter a reasonable opportunity of being
heard.”
50. Section 11 MOFA, which is the crucial provision for
determination of issue in the present case, imposes an obligation
on the promoter to convey his title in the land and building in
favour of the Cooperative Society, Company or Association of
apartment owners. It reads as under:
“11. Promoter to convey title, etc. and to execute
documents, according to the agreement.–(1) A
promoter shall take all necessary steps to complete his
title and convey to the organisation of persons, who
take flats, which is registered either as a cooperative
society or as a company as aforesaid or to an
association of flat takers [or apartment owners], his
right, title and interest in the land and building and
execute all relevant documents therefor in accordance
with the agreement executed under Section 4 and if no
period for the execution of the conveyance is agreed
upon, he shall execute the conveyance within the
prescribed period and also deliver all documents of
title relating to the property which may be in his
possession or power.
(2) It shall be the duty of the promoter to file with
the competent authority, within the prescribed period,
a copy of the conveyance executed by him under sub-
section (1).
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(3) If the promoter fails to execute the conveyance in
favour of the cooperative society formed under Section
10 or, as the case may be, the Company or the
association of apartment owners, as provided by sub-
section (1), within the prescribed period, the members
of such cooperative society or, as the case may be, the
Company or the association of apartment owners may,
make an application, in writing, to the concerned
competent authority accompanied by the true copies of
the registered agreements for sale, executed with the
promoter by each individual member of the Society or
the Company or the association, who have purchased
the flats and all other relevant documents (including
the occupation certificate, if any), for issuing a
certificate that such society, or as the case may be,
company or association, is entitled to have an
unilateral deemed conveyance, executed in their
favour and to have it registered.
(4) The competent authority, on receiving such
application, within reasonable time and in any case not
later than six months, after making such enquiry as
deemed necessary and after verifying the authenticity
of the documents submitted and after giving the
promoter a reasonable opportunity of being heard, on
being satisfied that it is a fit case for issuing such
certificate, shall issue a certificate to the Sub-Registrar
or any other appropriate Registration Officer under the
Registration Act, 1908, certifying that it is a fit case for
enforcing unilateral execution, of conveyance deed
conveying the right, title and interest of the promoter
in the land and building in favour of the applicant, as
deemed conveyance.
(5) On submission by such society or as the case may
be, the Company or the association of apartment
owners, to the Sub-Registrar or the concerned
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appropriate Registration Officer appointed under the
Registration Act, 1908, the certificate issued by the
competent authority along with the unilateral
instrument of conveyance, the Sub-Registrar or the
concerned appropriate registration Officer shall,
notwithstanding anything contained in the Registration
Act, 1908, issue summons to the promoter to show
cause why, such unilateral instrument should not be
registered as “deemed conveyance” and after giving the
promoter and the applicants a reasonable opportunity
of being heard, may on being satisfied that it was fit
case for unilateral conveyance, register that instrument
as ‘deemed conveyance’.”
51. Rule 5 deals with particulars to be contained in the
agreement to be executed under Section 4 MOFA and reads as
under:
“5. Particulars to be contained in agreement.–The
promoter shall, before accepting any advance payment
or deposit, enter into an agreement with the flat
purchaser in Form V containing the particulars
specified in clause (a) of sub-section (1-A) of Section 4
and shall attach thereto the copies of the documents
specified in clause (b) of the said sub-section (1-A).”
52. The definition of “promoter” under Section 2(c) is
deliberately broad and inclusive. The Legislature has consciously
avoided limiting the expression to only the person who physically
constructs the building or only the person who signs the
agreement for sale. The provision brings within its fold every
person who constructs or causes construction of flats for sale. It
includes individuals, firms, companies, associations and even
assignees. The language used is clear. If one person builds and
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another sells, both are treated as promoters. The emphasis is not
on labels but on the role played in the project. This approach is
significant because it reflects the legislative intent to prevent
fragmentation of responsibility.
53. The Legislature was fully aware of the reality that real estate
projects are rarely executed by one entity alone. Landowners,
developers, coordinators and marketing entities often function
together under layered contractual arrangements. If liability under
MOFA were restricted only to the developer who physically
constructs, the landowner could retain title and escape statutory
obligations. Likewise, a developer could argue that he has no
ownership and therefore no duty to convey. The law prevents such
arguments by widening the definition. The statutory scheme of
MOFA proceeds in a sequence. The promoter executes registered
agreements, discloses material particulars, facilitates formation of
a society and ultimately conveys title. These are not isolated
obligations. They form a continuous chain meant to protect flat
purchasers. If the term “promoter” were read narrowly, this chain
would break at crucial points. A landowner could retain control
over land while shifting responsibility to a developer. The result
would defeat the object of the Act. Therefore, the Court is required
to look at the real substance of the arrangement.
54. Section 3 of the Act lays down the general liabilities of the
promoter. Section 4 introduces a strict statutory safeguard before
any consideration is accepted from purchasers. It mandates that a
promoter intending to construct flats on ownership basis must
enter into a written and registered agreement for sale with each
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purchaser before accepting more than twenty percent of the sale
price as advance or deposit. The requirement of registration and
prescribed form ensures certainty and enforceability at the earliest
stage of the transaction.
55. Sub-section (1A) of Section 4 further prescribes the essential
contents of the agreement. The promoter must disclose the
obligation to construct according to sanctioned plans, the date of
possession, the carpet area, the breakup of consideration including
common areas, and the nature of the organization to be formed.
The agreement must also specify the extent of undivided interest
in common areas. These requirements demonstrate that the law
insists upon full disclosure and clarity at the time of sale so that
purchasers enter the transaction with complete knowledge of their
rights and obligations.
56. Section 7 prohibits unilateral alteration of sanctioned plans
without consent, thereby protecting purchasers from post-sale
changes that may affect their rights. Section 10 imposes a further
duty upon the promoter to take steps for formation of a
cooperative society or company as soon as the minimum number
of purchasers is reached. If the promoter fails, the competent
authority may direct registration upon application by purchasers.
The formation of a society is therefore not a matter of choice but a
statutory step intended to transfer collective control to purchasers.
57. The core of the statutory scheme lies in Section 11. This
provision marks the transition from contractual arrangements to
actual transfer of ownership. Until conveyance is executed,
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purchasers hold only contractual rights under the agreement for
sale. Section 11 ensures that these contractual rights mature into
real proprietary rights by compelling transfer of title in favour of
the collective body of purchasers. Sub-section (1) requires the
promoter to take all necessary steps to complete his title and
convey his right, title and interest in the land and building to the
organization of purchasers. This obligation is significant. The
promoter cannot avoid conveyance by contending that his title is
incomplete or imperfect. The law places the burden squarely on
him to perfect his title and transfer whatever he holds. The form of
organization, whether cooperative society, company or association
of apartment owners, does not alter the obligation. The promoter
must transfer the interest that he possesses.
58. The expression “his right, title and interest” used in Section
11 signifies the entirety of the promoter’s legal and beneficial
estate in the property. The phrase is not confined to the
superstructure alone, nor restricted to common areas. The section
expressly refers to both land and building, recognizing that
ownership of flats cannot be meaningfully separated from the land
upon which the building stands. The Legislature has therefore
employed language that excludes any possibility of retaining a
hidden or residual interest. A promoter cannot transfer less than
what he holds, nor can he retain any part of his interest once the
stage of conveyance arises. The extent of the society’s right
necessarily corresponds to the promoter’s title. If the promoter
holds freehold ownership, then the entire ownership, including
land and building, must pass to the society. The statute does not
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permit the promoter to retain ownership while granting only a
lease or limited right. Such division would defeat the very object of
collective ownership envisaged under the Act. Conversely, where
the promoter himself holds only leasehold rights under a superior
owner, he cannot transfer ownership which he does not possess. In
such cases, the statutory requirement is that he must assign the
entirety of his leasehold interest to the society. Even then, he
cannot retain any portion of the lease or continue as a superior
lessee after flats have been sold. The rationale is that the society
steps into the legal position previously occupied by the promoter. It
receives exactly what the promoter held, neither more nor less.
This principle prevents misuse whereby promoters attempt to
retain superior rights in land after selling flats, thereby controlling
redevelopment or extracting future benefits. The inquiry under
Section 11 is therefore factual. The Court must determine the true
nature of the promoter’s title at the time conveyance becomes due.
Once identified, the transfer must correspond fully to that title
without reduction or reservation. Flat purchasers acquire flats
together with a proportionate undivided interest in the land and
common areas. Their ability to manage, maintain and redevelop
the property depends upon control over the underlying land. If the
promoter retains ownership, the society’s autonomy becomes
illusory and major decisions remain subject to the promoter’s
control. The expression “right, title and interest” must therefore be
given full meaning. It obliges the promoter to divest himself
entirely of his estate in the land and building. Any attempt to
transfer only the structure while retaining land ownership is
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contrary to the statutory mandate. The legislative command is that
the entire interest held by the promoter must vest in the society.
Section 11 also requires execution of all relevant documents in
accordance with the agreement under Section 4. This ensures
continuity between the statutory agreement and the final
conveyance. If a specific period for conveyance is agreed, that
governs. In the absence of such stipulation, the Rules prescribe a
period of four months. The promoter must also hand over title
documents in his possession. Without such documents, the society
cannot effectively manage or deal with the property. The
Legislature clearly intended to prevent situations where promoters
retain control by withholding title papers.
59. When read as a whole, the statutory sequence is clear. The
promoter constructs and sells flats. Purchasers form a society. The
promoter perfects title and then transfers his entire interest in land
and building along with title documents. Section 11 thus
represents the point at which ownership and control pass from
promoter to purchasers collectively. The provision ensures that
promoters do not indefinitely remain in a dominant position and
that contractual rights mature into genuine ownership.
60. Form V prescribed under the Rules serves as a statutory
model agreement under Section 4. Once such a form is prescribed,
parties cannot dilute its essential obligations through private
drafting. The purpose of a uniform model is to guarantee
minimum statutory protection to purchasers across the State.
Clause 13 of Form V specifically addresses conveyance and
requires transfer within four months of society registration unless
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otherwise agreed. It mandates transfer of all right, title and
interest of the vendor, lessor, owner or promoter in the land
together with the building, through conveyance or assignment of
lease, consistent with the agreement. Clause 13 carries particular
significance. First, it reiterates the expression “all right, title and
interest”, leaving no scope for partial transfer. Second, it
recognizes different kinds of title. Where the promoter is owner,
conveyance of ownership must follow. Where the promoter is a
lessee, assignment of the entire leasehold interest must be
executed. The nature of the instrument may differ, but the extent
of transfer remains complete. The clause ensures that statutory
obligations become part of the contractual arrangement and
prevents promoters from later contending that only limited rights
were intended to be transferred.
61. A combined reading of Section 11, Rule 5 and Clause 13 of
Form V reveals a single coherent statutory scheme. Section 11
imposes the obligation. Rule 5 ensures the agreement reflects that
obligation. Clause 13 incorporates the duty directly into the
contract. The promoter cannot split his interest, retain valuable
rights and transfer only a diminished estate to the society. The Act
seeks to secure collective ownership for purchasers and not a
perpetual landlord-tenant relationship between promoter and
society, except where the promoter himself possesses only
leasehold rights. Even in such cases, the entire leasehold must
pass. The legislative intent is consistent throughout. Once the
society is formed, the promoter must transfer his full right, title
and interest and withdraw from ownership. Any interpretation
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permitting partial retention would dilute the statutory protection
granted to flat purchasers and cannot be accepted.
Promoter’s title and the contractual record:
62. Both sides have placed substantial reliance on the
contractual documents executed at different stages of the project,
and therefore it becomes necessary to examine these agreements
in their proper sequence and context. The Petitioners seek to build
their case primarily on Clause 2 of the parent Agreement dated
2nd January 1995 and the subsequent Sub-Lease Agreement dated
6th April 1995. According to them, these documents show that the
arrangement between the landowner and the developer
contemplated only leasehold rights, and, therefore, the competent
authority could not have granted a conveyance of ownership. Their
submission is that the foundational structure of the transaction
was lease based, and every subsequent step must be read
consistently with that original intention.
63. The Society, on the other hand, draws attention to a different
set of clauses and documents which, according to it, reveal the real
legal position emerging from the later stage of the project.
Reliance is placed on Clauses 3(d), 8 and 11 of the inter-se
agreements, which speak of transfer of title in segments and
handover of juridical possession. More importantly, the Society
relies upon the MOFA Agreements for Sale executed with
individual purchasers. These agreements are not private
commercial arrangements between promoters alone; they are
statutory agreements executed in the prescribed form under the
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Maharashtra Ownership Flats Act. Within these agreements,
Clause 4(A)(i) records that 12% of the consideration was payable
towards land, and Clause 41(d) specifically contemplates transfer
of title in the land. The Society therefore submits that the intention
reflected in the statutory agreements is clear and unambiguous,
namely that title in the land was to be transferred to the body of
purchasers.
64. A significant factual aspect emerging from the record is that
Wadia himself is a signatory to the MOFA Agreements for Sale. It is
not a case where the landowner stood outside the transaction or
remained a distant entity. The material placed before the Court
indicates that Wadia accepted 12% of the consideration directly
from unit purchasers as land consideration. This circumstance
assumes importance because acceptance of such consideration
under registered MOFA agreements normally indicates
acknowledgment of an obligation to part with corresponding rights
in the land. The agreements, read as a whole, contain recitals and
operative clauses which refer to transfer of title in demarcated
segments, and Clause 41(d) expressly states that title in the land
would be transferred.
65. Therefore, when these documents are read together, a clear
conflict appears between the interpretation advanced by the
Petitioners based on earlier agreements and the interpretation
advanced by the Society based on later statutory agreements
executed with purchasers. The Court cannot read one set of
clauses in isolation while ignoring the later contractual framework
that governed the relationship between promoters and flat
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purchasers. The issue, therefore, is not merely what was
contemplated at the initial stage between promoter entities, but
what rights were ultimately promised to and accepted by the
purchasers under the statutory scheme of MOFA. This requires the
Court to assess the agreements and to determine which set of
obligations governs the stage of conveyance now in question.
66. The MOFA Agreements for Sale assume central importance
in this exercise. These are not ordinary private contracts drafted at
the convenience of parties. They are statutory-form agreements
executed in the format required by law. The Legislature has
attached significance to such agreements because they represent
the final legal understanding placed before purchasers at the time
of sale. These agreements record the consideration structure,
including the payment of 12% towards land, and set out the
obligations concerning transfer of title. Once such agreements are
executed and registered, they carry statutory weight and cannot be
lightly ignored in favour of earlier internal arrangements between
promoter entities.
67. An important circumstance is that Wadia himself is a
signatory to these MOFA Agreements for Sale. This is not a case
where the landowner remained outside the contractual chain. The
record shows that he accepted the stipulated 12% land
consideration directly from unit purchasers. When a promoter
signs the statutory agreement, receives land consideration, and the
agreement contains express clauses speaking of transfer of title,
the natural and reasonable inference is that the promoter has
undertaken to transfer ownership interest in the relevant land.
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Courts cannot disregard such clear contractual indicators and
proceed on speculative interpretations.
68. Viewed in this background, the material placed before the
Competent Authority supports the conclusion that Wadia had
direct contractual privity with the purchasers. The MOFA
Agreements for Sale demonstrate that he agreed to transfer title in
respect of the land corresponding to Building No. 4. Once such a
conclusion emerges from the documents, the Competent Authority
was justified in examining and granting conveyance on a freehold
basis, unless there existed clear and convincing documentary
evidence showing that the promoter’s interest was limited in law.
No such overriding material has been shown at this stage.
69. The Petitioners rely heavily on earlier MOUs executed
between the developer and the association, which refer to
leasehold arrangements at nominal rent. However, those
antecedent documents cannot automatically prevail over later
statutory agreements executed with individual purchasers. The
Section 4 MOFA Agreements for Sale are registered, executed in
prescribed form, and supported by consideration paid by
purchasers. They represent the binding terms under which flats
were sold. Where such agreements clearly refer to transfer of title
and land consideration, earlier commercial understandings
between promoter entities cannot, by themselves, displace or
dilute the rights created in favour of purchasers. At best, the MOUs
may have governed internal commercial arrangements between
the developer and the association, including allocation of
responsibilities or financial terms between them. But those
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documents do not operate as instruments controlling or reducing
statutory rights granted to purchasers under MOFA agreements.
The rights of flat purchasers must ultimately be determined from
the statutory agreements executed with them, and not from prior
inter-se arrangements to which purchasers were not parties. For
these reasons, the Court is required to give primacy to the MOFA
Agreements for Sale while determining the nature of conveyance
contemplated under the law.
70. The principles laid down in Haresh Bhatia, when applied to
the facts of the present case, make the legal position fairly clear.
Once flats are sold and a society is formed, the law does not permit
the promoter to keep back any part of the interest which he
himself holds in the land and building. The society steps into the
shoes of the promoter. It receives exactly what the promoter
possessed. Nothing less. This is the core idea that runs through the
statutory scheme and the judgments relied upon.
71. In the present matter, much argument has been advanced
about who exactly should be treated as the promoter. The record
shows that development of the project was carried out through
multiple entities. The land belonged to Wadia. Development
responsibilities were routed through Ivory Properties and
thereafter RK Properties. Agreements were executed, permissions
were obtained, construction was carried out, flats were sold, and
consideration was received. The law does not permit these roles to
be separated in a way that allows responsibility to disappear. A
person who causes construction, enables development, or
participates in sale of flats falls within the definition of promoter
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under MOFA. Therefore, even if the development was structured
through different companies, those who effectively brought the
project into existence cannot avoid statutory obligations by relying
on internal arrangements.
72. The next important aspect is the nature of the interest that
must be conveyed. The judgments relied upon make it clear that
deemed conveyance does not create a new or enlarged title. It
merely transfers what the promoter already has. That means the
competent authority must look at the real entitlement of the
promoter. If the promoter is owner of the land, ownership must
pass to the society. If the promoter is only a lessee, then the entire
leasehold interest must be assigned. The law recognises these two
possibilities. What it does not permit is a halfway arrangement
where the promoter keeps the superior right and transfers only a
limited or subordinate interest to the society.
73. This principle assumes significance in the present case
because the petitioners rely heavily on internal agreements
between owner and developer to suggest that only leasehold rights
were contemplated. However, the statutory agreements executed
with flat purchasers, the receipt of land consideration, and the
obligations recorded therein indicate that the promoter had
undertaken to transfer title corresponding to the completed
segment. Internal commercial arrangements may regulate business
relationships between promoter entities, but they cannot override
the statutory mandate contained in Section 11. The rights of flat
purchasers arise from the registered MOFA agreements and the
statute itself. Once those rights crystallise, the promoter cannot
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rely on private arrangements to reduce what the society is entitled
to receive.
74. The reasoning in Haresh Bhatia reinforces this position. Both
judgments emphasise that the purpose of MOFA is to ensure that
flat purchasers obtain real control over the property and are not
left as mere occupiers dependent on the promoter. If the promoter
were allowed to retain the superior estate while conveying only a
fragment, the entire object of the legislation would be defeated.
The society would remain vulnerable in matters of redevelopment,
management and future use of the property. The law therefore
insists on complete transfer of the promoter’s interest.
75. Applying this principle to the facts before the Court, the
Competent Authority examined the material available, including
the MOFA Agreements for Sale, the role of the promoter entities,
and the consideration received. It concluded that conveyance
should be granted to the extent of the promoter’s entire interest in
the relevant segment. That approach is consistent with the
statutory framework. The authority did not create a new right in
favour of the society. It merely ensured transfer of whatever right
the promoter held. It is also necessary to remember the practical
consequence of accepting the petitioners’ argument. If promoters
are permitted to retain superior title indefinitely while societies
receive only limited rights, the statutory protection under MOFA
would become illusory. Flat purchasers would remain dependent
on promoters even decades after possession. The law was enacted
precisely to prevent such imbalance. The interpretation adopted by
the Competent Authority aligns with that legislative purpose.
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Therefore, when the reasoning in Haresh Bhatia is read in the
context of the present facts, it strengthens the conclusion that the
impugned order does not suffer from any legal infirmity. The order
ensures that the society receives the promoter’s full right, title and
interest, whatever be its nature, and thereby gives effect to the
statutory command under Section 11. The challenge raised by the
petitioners on this ground cannot be accepted.
Whether the DDR had jurisdiction to grant freehold conveyance
76. The Petitioners have relied upon a line of judgments which
lay down that where the Section 4 MOFA Agreement clearly
contemplates only assignment of leasehold rights, the competent
authority cannot travel beyond that arrangement and grant
freehold conveyance. That proposition is correct in law and there
can be no disagreement with it. The authority exercising powers
under Section 11 does not create new rights. It only gives effect to
the rights flowing from the statutory agreements executed between
the parties. Therefore, if the agreement itself restricts the transfer
to leasehold rights, the authority must remain within that
boundary.
77. However, the application of this principle always depends
upon the factual foundation of the case. The decisive factor is not
the abstract legal rule but the nature of title and rights actually
reflected in the Section 4 agreements and the accompanying
project documents. The Court must therefore examine what the
competent authority had before it and whether the conclusion
drawn was reasonably possible on that material. Jurisdiction
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cannot be tested in isolation from the record that was available at
the time of decision.
78. In the present matter, the Competent Authority examined the
MOFA Agreements for Sale executed with the purchasers, the
Architect’s certificate, and other supporting documents placed on
record. On that basis, it recorded findings that no formal lease
deed had ever been executed in favour of the Society or any
intermediary, and that land consideration had in fact been received
from purchasers. These factual findings were not reached casually.
They were part of the authority’s exercise of evaluating the nature
of rights that had emerged from the transaction as it actually
unfolded.
79. Once the authority found that the statutory agreements
contain clauses relating to transfer of title, and that consideration
towards land had been accepted, it concluded that the Society had
satisfied the requirements under MOFA and was entitled to
conveyance of ownership rights. In this background, it cannot be
said that the authority acted outside its jurisdiction merely because
an alternative interpretation of earlier documents is possible.
Jurisdiction is exceeded only when the authority ignores the
governing documents or grants a right plainly contrary to them.
That situation does not arise on the material presently available.
80. The MOFA Agreements for Sale occupy a central position
because they are the statutory instruments through which
purchasers entered the project. When such agreements indicate
transfer of title and are supported by payment of land
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consideration, the competent authority is entitled to proceed on
that basis. The decision to grant freehold conveyance, therefore,
cannot be characterised as a jurisdictional error. At best, it is a
conclusion drawn from appreciation of documents, which is a
matter of merits rather than power.
81. It is also necessary to clarify the limits of this determination.
Proceedings before the competent authority under Section 11 are
summary in nature. They do not finally adjudicate complicated
questions of title. If, in a properly constituted civil proceeding and
on fuller evidence, a promoter is able to establish that his interest
was strictly leasehold and that the MOFA Agreements did not
intend to pass ownership rights, the legal consequences may be
different. Such issues remain open to be examined in appropriate
proceedings where evidence can be tested in detail.
82. But on the record as it stood before the District Deputy
Registrar, the conclusion that freehold conveyance could be
granted cannot be termed perverse or without jurisdiction. The
authority considered relevant material, applied the statutory
framework, and arrived at a view that was reasonably supported
by the documents. For that reason, the jurisdictional challenge to
the order cannot be accepted.
Execution of conveyance after completion of the entire layout and
creation of an Apex Body:
83. The submission of Mr. Seervai learned Senior Counsel
proceeds on the footing that the expression “respective segments”
used in Clause 3(d) of the parent Agreement dated 2nd January
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postpones transfer until completion of the entire layout and
creation of an Apex Body. According to the petitioners, if the
clauses are read together with Schedules I and II, the intention
was to grant only leasehold rights at a later stage and not to
permit conveyance in favour of an individual society representing
a completed building. This argument requires careful examination
because it goes to the root of the challenge.
84. At the outset, the Court must keep in mind the nature of the
proceedings before the Competent Authority. The authority under
Section 11 of MOFA is not deciding abstract contractual disputes
between commercial entities. Its task is limited. It has to examine
whether flat purchasers, who have entered into registered Section
4 agreements, are entitled to receive conveyance of the promoter’s
right, title and interest. Therefore, while earlier inter se
agreements between landowner and developer may provide
background, the decisive document for the purposes of MOFA
remains the registered agreement for sale executed with flat
purchasers. When the clauses relied upon by the petitioners are
read in context, they do not conclusively establish that transfer
could occur only after completion of the entire development. The
phrase “respective segments” itself indicates that the larger
property was intended to be developed in parts. The language does
not necessarily compel a conclusion that conveyance must wait till
the entire layout is completed. On the contrary, the concept of
segments suggests that different portions could be dealt with
separately depending on progress of construction. This
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understanding also finds support in other clauses of the
agreements which speak of transfer linked with completion of
buildings in particular segments. Further, the Court cannot read
one clause in isolation while ignoring the subsequent conduct of
the parties and later statutory agreements. The MOFA Agreements
for Sale executed with individual purchasers are registered
documents in the prescribed statutory form. These agreements
expressly record transfer obligations, land consideration and
participation of Wadia as signatory. They also contain clauses
indicating transfer of title in relation to the land connected with
the building purchased. Once such statutory agreements were
executed and consideration accepted, the rights of flat purchasers
crystallised under MOFA. Those rights cannot be diluted merely by
referring back to earlier commercial arrangements between
promoter entities.
85. The submission that the Section 4 agreements incorporated
the parent agreement and therefore bound purchasers to accept
only a lease also cannot be accepted in absolute terms.
Incorporation of earlier agreements does not mean that every
internal arrangement automatically overrides the statutory
obligations imposed by MOFA. The Act is a welfare legislation
intended to protect flat purchasers. Section 11 requires the
promoter to convey whatever right, title and interest he holds. If
the promoter had intended to restrict transfer strictly to leasehold
rights, such limitation ought to have been clearly reflected in the
registered agreements with purchasers. The record, however,
shows clauses referring to transfer of title and payment of land
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consideration. That weakens the argument that only leasehold
rights were contemplated. It is also important to notice the
practical aspect. Building No. 4 was completed long ago. For years
thereafter, no further development took place. Litigation between
promoter entities continued. If conveyance is postponed
indefinitely on the ground that the entire layout is incomplete, flat
purchasers would remain without title for an uncertain period.
MOFA was enacted precisely to prevent such situations. The law
does not permit promoters to indefinitely delay conveyance by
relying on future development plans that may or may not
materialise.
86. The argument that only an Apex Body could receive
conveyance also does not assist the petitioners at this stage. The
statute recognises conveyance to a cooperative society formed by
flat purchasers of a building. Where a building is complete and a
society is formed, the competent authority is empowered to grant
conveyance of the promoter’s interest relating to that portion.
Whether a future apex arrangement may be created is a matter
that can be worked out separately. It cannot defeat the statutory
right of an existing society to seek conveyance of the land
appurtenant to its building. Therefore, on a plain and practical
reading of the documents, the Court finds that the interpretation
suggested by the petitioners is not the only possible interpretation,
nor is it compelling enough to displace the conclusion reached by
the Competent Authority. The authority examined the MOFA
Agreements for Sale, the project documents and the material on
record and concluded that conveyance in favour of the respondent
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society was permissible. That conclusion cannot be said to be
perverse or contrary to law merely because another interpretation
of the parent agreement is possible.
87. Therefore, the reliance on Clauses 3(d), 8, 9, 11 and 12 to
argue that conveyance could arise only after completion of the
entire project does not withstand scrutiny when viewed in the light
of the statutory scheme of MOFA, the later registered agreements
executed with purchasers, and the factual position that the
building in question stood completed long ago. The submission is
therefore rejected.
Compliance with procedural rules and natural justice:
88. The Petitioners assail the findings of the Competent
Authority on the issue of service of notice. Their principal
submission is that the impugned order merely records issuance of
notice and does not contain a clear finding that service was duly
effected. Attention is drawn to Paragraphs 4 and 14(A) of the
order. According to them, issuance and service are legally distinct.
They further contend that no affidavit has been filed by the office
of the District Deputy Registrar demonstrating compliance with
Rule 13(2) of the applicable Rules. The Form X relied upon is said
to be defective. It is also argued that notices were sent to an old
registered office address despite change of address, thereby
rendering the entire process invalid.
89. These objections require examination in the backdrop of
settled legal principles. The requirement of notice is rooted in
natural justice. A person likely to be affected must have a fair
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opportunity to participate in the proceedings. Rule 13(2)
prescribes the manner of service and the form in which notice is to
be issued. At the same time, the law is equally clear that every
procedural lapse does not automatically nullify the proceedings.
Courts have consistently held that the test is one of prejudice.
Unless the breach goes to the root or unless the rule violated is
mandatory in a manner that itself establishes prejudice, the Court
must examine whether the party was in fact denied a meaningful
opportunity to contest. The focus therefore shifts from technical
deficiency to legal prejudice.
90. The Court must, therefore, examine three aspects. First,
whether notice was attempted at the address available in the
relevant agreements and records. Second, whether substituted
service such as public notice was resorted to. Third, whether any
procedural shortcoming actually deprived the Petitioners of an
effective chance to place their case before the authority. The
enquiry is factual and cannot be decided merely by pointing to
absence of formal procedure.
91. On the present record, the Competent Authority has noted
that Form X and the public notice are both dated 25th April 2022.
Public notice was admittedly published. The application was
accompanied by the Architect’s certificate and other supporting
documents. The record further shows that notices were dispatched
to the address mentioned in the MOFA Agreements for Sale. Those
notices were returned with the endorsement “Left Without
Instructions.” Thereafter, public notice was issued. The authority
recorded these circumstances and proceeded with the hearing. It is
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also undisputed that Wadia and Ivory Properties appeared before
the authority and contested the matter on merits, while RK
Properties did not remain present.
92. It is true that there is no separate finding by the office of the
District Deputy Registrar strictly proving each step of compliance
under Rule 13(2). However, it remains a procedural irregularity.
The legal consequence depends upon whether real prejudice has
been demonstrated. On this aspect, the record assumes
significance. Two of the promoters appeared and participated in
the proceedings. They advanced submissions and contested the
application. This indicates that the proceedings were not
conducted behind the back of all concerned parties.
93. RK Properties contends that it had shifted its registered office
and therefore did not receive notice. Even accepting this assertion,
the material does not show that it was deprived of a genuine
opportunity which, if granted, would have altered the course of
the proceedings. No concrete material is shown indicating what
additional evidence it would have produced or how the outcome
would have been materially different. Mere assertion of non-
service, without demonstrating actual prejudice, is insufficient to
invalidate the proceedings, particularly when public notice was
issued and related parties were already contesting the matter.
94. The Court must also bear in mind the practical context.
Proceedings under MOFA are intended to provide an effective
remedy to flat purchasers where conveyance is delayed. If every
technical irregularity in service were treated as fatal despite
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substantial participation by affected parties, the statutory object
would be frustrated. The law therefore insists on a balanced
approach, ensuring fairness without allowing procedural
objections to become instruments of delay.
95. In State of U.P. v. Sudhir Kumar Singh , the Supreme Court
observed that in earlier decisions non-observance of principles of
natural justice was treated as prejudice per se, dispensing with any
requirement of independent proof of prejudice. An exception,
however, was recognised in cases where admitted or indisputable
facts admitted of only one possible conclusion and only one
consequence in law, in which event courts would decline to issue
futile writs. The Court further noted the subsequent evolution of
law, as explained in P.D. Agrawal v. SBI, (2006) 8 SCC 776,
wherein it was held that the doctrine of natural justice has
undergone substantial development and that real prejudice must
be demonstrated. A distinction was drawn between cases involving
complete denial of hearing and those involving merely technical
infringement, emphasising that application of natural justice
depends upon the factual context of each case and cannot be
applied in a rigid or mechanical manner.
96. The Supreme Court further held that prejudice cannot be
presumed where facts are admitted or indisputable. Reliance was
placed on K.L. Tripathi v. SBI [K.L. Tripathi v. SBI, (1984) 1 SCC
43, wherein it was held that principles of natural justice are rooted
in fair play and must be examined in the context of the nature of
charges, the enquiry conducted and the governing statutory
framework. The Court clarified that where facts are not in dispute
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and no real prejudice is shown, absence of certain procedural
opportunities, such as cross-examination, would not by itself
vitiate the decision. It was emphasised that unless the party
disputes the veracity of material or seeks to challenge credibility,
procedural omissions do not automatically invalidate the outcome.
97. In State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667, the
Supreme Court reiterated that where action is founded upon
undisputed facts and is otherwise valid in law, principles of natural
justice may not be attracted unless the action carries punitive
consequences or stigma causing prejudice. Reliance was placed on
Viveka Nand Sethi v. J&K Bank Ltd., (2005) 5 SCC 337, wherein it
was held that natural justice is not an inflexible doctrine and that
where facts are admitted, insistence on a formal hearing may
amount to an empty formality.
98. The Constitution Bench decision in ECIL v. B. Karunakar,
(1993) 4 SCC 727 was also considered, wherein the Supreme
Court held that non-furnishing of an enquiry report does not
automatically invalidate the order of punishment. The Court
emphasised that principles of natural justice are intended to
advance justice and not to operate as empty rituals. It was held
that the court or tribunal must examine whether non-supply of the
report caused actual prejudice and whether furnishing the report
would have led to a different result. Only upon such finding should
interference be warranted.
99. The Supreme Court further observed that relief cannot be
granted mechanically merely upon proof of procedural violation.
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The enquiry must extend to the question whether such violation
has caused prejudice and whether interference would serve the
ends of justice. It was specifically clarified that the determination
of prejudice lies within the domain of the court or tribunal and
cannot be undertaken unilaterally by the authority denying the
hearing. In Dharampal Satyapal Ltd. v. CCE, (2015) 8 SCC 519, the
Supreme Court explained that principles of natural justice are
flexible and their application depends upon the nature of the
function, the extent of impact on the affected person, and the
surrounding circumstances. The Court held that while authorities
cannot dispense with hearing on the assumption that no prejudice
would result, courts are empowered to examine whether remand
would serve any meaningful purpose and may decline interference
where no prejudice is shown.
100. In State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364,
the Supreme Court distinguished between cases of “no opportunity
at all” and cases of inadequate or technical opportunity. It was held
that violation of procedural provisions does not automatically
vitiate proceedings unless prejudice is established. The Court laid
down that the ultimate test is whether a fair hearing was afforded,
and that only where violation results in failure of justice would
interference be justified. A distinction was also drawn between
substantive and procedural provisions, the former ordinarily
requiring strict compliance, while the latter are examined on the
touchstone of prejudice.
101. In M.C. Mehta v. Union of India, (1999) 6 SCC 237, the
Supreme Court discussed the tension between breach of natural
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justice and judicial discretion to refuse relief where no real
prejudice is caused. The Court noted divergent judicial opinions on
the “useless formality” theory but recognised that in cases
involving admitted and indisputable facts leading to only one
conclusion, courts may decline to grant relief as remand would be
futile.
102. In Aligarh Muslim University v. Mansoor Ali Khan, (2000) 7
SCC 529, the Supreme Court reiterated that breach of natural
justice by itself is insufficient and that prejudice must ordinarily be
demonstrated, depending upon the facts of each case. The Court
observed that there is no absolute rule and that application of the
prejudice test must be context-specific.
103. In Union of India v. Alok Kumar, (2010) 5 SCC 349, the
Supreme Court held that prejudice cannot be based on mere
apprehension or suspicion. The party alleging violation must
demonstrate actual or reasonably inferable prejudice arising from
non-observance of natural justice. The Court clarified that
procedural lapses do not ipso facto render proceedings void unless
de facto prejudice is established.
104. The Supreme Court thus emphasised that principles of
natural justice are intended to secure fairness and not to provide
technical grounds for invalidation where no injustice has resulted.
Upon analysis of the aforesaid precedents, the Supreme laid down
following principle :
“42.1. Natural justice is a flexible tool in the hands of the
judiciary to reach out in fit cases to remedy injustice. The64
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without more, lead to the conclusion that prejudice is
thereby caused.
42.2. Where procedural and/or substantive provisions of law
embody the principles of natural justice, their 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.
42.3. No prejudice is caused to the person complaining of the
breach of natural justice where such person does not dispute
the case against him or it. This can happen by reason of
estoppel, acquiescence, waiver and by way of non-challenge
or non-denial or admission of facts, in cases in which the
Court finds on facts that no real prejudice can therefore be
said to have been caused to the person complaining of the
breach of natural justice.
42.4. In cases where facts can be stated to be admitted or
indisputable, and only one conclusion is possible, the Court
does not pass futile orders of setting aside or remand when
there is, in fact, no prejudice caused. This conclusion must
be drawn by the Court on an appraisal of the facts of a case,
and not by the authority who denies natural justice to a
person.
42.5. The “prejudice” exception must be more than a mere
apprehension or even a reasonable suspicion of a litigant. It
should exist as a matter of fact, or be based upon a definite
inference of likelihood of prejudice flowing from the non-
observance of natural justice.”
105. Applying this principle to the present case, the first question
is whether the promoters were denied an effective opportunity of
hearing. The record shows that notices were issued in the
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prescribed form, notices were sent to the address recorded in the
MOFA Agreements for Sale, and when those notices returned
unserved, public notice was published. The Competent Authority
also recorded these steps in the proceedings. More importantly,
Wadia and Ivory Properties appeared before the authority and
contested the matter on merits. This shows that the proceedings
were not conducted behind the back of all promoters. The
opportunity to participate was in fact exercised by parties
connected with the project.
106. The Petitioners emphasise that the order records only
issuance and not proof of valid service, and that there is no
affidavit from the office of the District Deputy Registrar strictly
proving compliance with Rule 13(2). Even if this is accepted, the
law as explained in Sudhir Kumar Singh makes it clear that breach
of procedure by itself is not enough. The Court must examine
whether the defect caused real prejudice. Here, no such prejudice
is demonstrated. The parties who appeared placed their case on
record. The issues were argued on merits. The authority
considered the contractual documents and rival contentions before
passing the order.
107. As regards RK Properties, the case is that it had shifted its
address and therefore was not served. However, the test is not
whether service was technically perfect but whether absence from
proceedings resulted in real disadvantage. RK Properties has not
shown what specific defence or material it was prevented from
producing, or how the result would have been different had it
appeared. A bare assertion that notice went to an old address
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cannot by itself establish prejudice. The Supreme Court has made
it clear that prejudice must exist as a matter of fact and not as a
mere apprehension or possibility.
108. The principles further state that where facts are admitted or
largely undisputed, courts should not set aside orders merely to
repeat the same exercise. In the present case, the material
documents, including the MOFA Agreements for Sale, the
Architect’s certificate, and other records, were before the authority.
The decision was based on these documents. Remanding the
matter only on a procedural objection, without showing that any
different conclusion is likely, would serve no useful purpose and
would amount to a futile exercise. It is also relevant that natural
justice protects fairness, not technicality. Where parties had
knowledge of proceedings, where some promoters actually
appeared, and where public notice was issued, it cannot be said
that the process was fundamentally unfair. The absence of a formal
affidavit or strict procedural perfection does not automatically
establish denial of hearing.
109. Viewed in the light of the principles laid down in Sudhir
Kumar Singh, the Court finds that the alleged defects in service,
even if assumed, do not demonstrate real or substantive prejudice.
The Petitioners have not shown that they were prevented from
putting forward their case or that the outcome would likely have
been different. The challenge based on breach of natural justice
therefore fails.
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Completeness of Deemed Conveyance Application and Form X
110. The Petitioners have argued that the application filed by the
Society was defective because the entry at Serial No. 13 was
incomplete and Form X was not in the exact prescribed format.
According to them, once the statutory form itself is defective, the
entire process of service becomes invalid and the proceedings
stand vitiated. Their submission proceeds on the footing that strict
compliance with the form is mandatory and any deviation must
automatically result in rejection of the application.
111. The legal position, however, requires a more balanced
approach. It is correct that applications under Section 11(3) of
MOFA must be filed in the prescribed manner and must contain
the particulars required under the Rules. The format is not
meaningless. It ensures that the promoter knows the case he has to
meet and that the Competent Authority receives the necessary
material before issuing a certificate. At the same time, the law does
not treat every imperfection in a form as fatal. The purpose of the
rule is to secure fairness and clarity, not to defeat substantive
rights on technical grounds. Therefore, courts generally examine
whether the defect is substantial, whether it misled the opposite
party, and whether it caused any real prejudice. If the defect is
merely technical or stands cured during the proceedings, the order
is not ordinarily set aside on that ground alone.
112. Examining the present record, the application filed by the
Society was accompanied by material documents, including the
Architect’s certificate, copies of registered MOFA Agreements for
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Sale, sanctioned plans and supporting records. The Competent
Authority scrutinised these documents, accepted the application
for consideration, and thereafter issued notices and called upon
parties to participate. This indicates that the authority did not
proceed on an empty or incomplete record. The essential facts
necessary for adjudication were before it.
113. The Petitioners have not demonstrated how the alleged
defect in Form X actually prejudiced them. There is no material to
show that any relevant information was concealed because of the
format adopted, or that the promoters were misled about the
nature of the claim. The proceedings were contested on merits.
Submissions were advanced regarding title, nature of conveyance,
area of land and other substantive issues. This itself indicates that
the promoters understood the case they had to answer.
114. In judicial review, the Court must distinguish between a
defect that goes to the root of jurisdiction and a defect which is
procedural in nature. A technical irregularity in the form, without
proof that it affected fairness of the process, cannot by itself justify
setting aside an otherwise reasoned order. The law insists on
prejudice, not mere technical objection. Unless the defect
prevented the promoter from presenting his defence or resulted in
failure of justice, interference is not warranted.
115. In the present case, no convincing material has been placed
to show that the alleged defect in Serial No. 13 or the format of
Form X caused any real disadvantage or miscarriage of justice. The
Competent Authority had before it the relevant documents, heard
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the parties who appeared, and decided the matter on merits.
Therefore, even assuming that there was some irregularity in the
form, it remains a procedural defect which does not invalidate the
impugned order in the absence of demonstrated prejudice.
Allegation of suppression of MOUs and Supplementary MOU
116. Wadia and RK Properties have strongly argued that the
Society suppressed the MOU dated 22nd November 2002 and the
Supplementary MOU dated 15th April 2003. According to them,
these documents were material because they allegedly recorded
tenantship or lease arrangements and, if placed before the
Competent Authority, would have changed the nature of the
decision on conveyance. The submission is that non-production of
these documents amounts to suppression of material facts and
therefore the impugned order deserves to be set aside.
117. There can be no dispute about the legal principle. If a party
deliberately withholds a material document which goes to the root
of the matter and which could reasonably influence the decision-
making process, such conduct is serious. Courts do not permit
parties to secure orders by concealment. The fairness of quasi-
judicial proceedings depends upon complete and honest disclosure
of relevant material. At the same time, the allegation of
suppression cannot be accepted lightly. The Court must examine
the nature of the document, the context in which it exists, whether
it was actually concealed, and whether its absence caused
prejudice or led to a wrong decision.
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118. When the record is examined, certain facts stand out. The
MOUs relied upon are inter-se arrangements between RK
Properties and the Association. They are not agreements executed
with individual flat purchasers under Section 4 of MOFA. Further,
the MOFA Agreements for Sale, which are registered statutory-
form contracts, contain recitals referring to the existence of these
earlier arrangements. This circumstance is important. If the recitals
themselves mention the MOUs, it becomes difficult to accept that
their existence was hidden or unknown to the promoters. The
documents were not secret in that sense.
119. Another aspect cannot be ignored. The MOFA Agreements
for Sale were executed later in point of time and were registered
documents. Wadia was a signatory to those agreements and
accepted land consideration from purchasers. If Wadia‘s case was
that the earlier MOUs restricted his title or limited the nature of
conveyance, he had full opportunity to place those documents
before the Competent Authority. The Rules themselves provide a
mechanism. Rule 13(4) permits parties to seek production of
additional documents relevant to the inquiry. The record does not
show that such a step was effectively pursued. A party who is
aware of a document, participates in proceedings, and yet does not
invoke the available procedure cannot later allege suppression as a
ground to invalidate the entire process.
120. It is also necessary to keep the hierarchy of documents in
mind. The MOUs appear to regulate commercial arrangements
between the developer and the association. The MOFA Agreements
for Sale, on the other hand, are statutory contracts executed with
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purchasers in the prescribed form. Rights of flat purchasers arise
primarily from these later agreements, which carry statutory force.
Therefore, even assuming that the MOUs contained clauses
regarding lease or tenancy, they cannot automatically override
later registered agreements executed under the statute, especially
when those agreements contain express provisions regarding
transfer of title and payment of land consideration.
121. The real question is whether the Competent Authority was
misled because the MOUs were not placed before it. On the
present record, such a conclusion is not possible. There is no clear
material to show that the authority proceeded on a false
assumption created by concealment. Nor is there proof that the
decision would necessarily have been different had the MOUs been
formally produced. The allegation of suppression, therefore,
remains more in the nature of an argument on interpretation
rather than proof of fraud or deliberate concealment.
122. In these circumstances, the Court is unable to hold that
suppression is established to the degree required to vitiate the
order. The MOUs, being prior inter-se documents, do not by
themselves displace the effect of later registered MOFA
Agreements executed with purchasers. In the absence of
demonstrated prejudice or clear evidence that the Competent
Authority was misled, mere non-production of such documents
cannot be treated as fatal to the proceedings.
Entitlement and area; 2018 Resolution and Architect’s certificate
123. The Petitioners have argued that the area granted under the
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deemed conveyance exceeds the entitlement of the Society. Their
case is founded mainly on Clause 18 of the MOU and Clause 7 of
the Supplementary MOU, which according to them restrict the
extent of land that could be conveyed. The Society, on the other
hand, relies upon the last sanctioned layout plan dated 11th
February 2005 and the Architect’s certificate dated 6th April 2022.
It is submitted that the area has been calculated strictly in
accordance with the 2018 Government Resolution and that the
Competent Authority has merely applied the statutory formula.
124. Before examining the rival submissions, the governing
principle must be kept in view. The 2018 Government Resolution
lays down a structured method for determining proportionate
undivided share in cases where multiple buildings exist on a larger
layout. The computation is based on objective factors such as
plinth area, built-up area, and appurtenant land. The role of the
Competent Authority is to verify the sanctioned plans, examine the
Architect’s calculations, and ensure that the proportion awarded
corresponds to the completed building.
125. It is equally settled that disputes relating to exact area, title
boundaries, or quantitative allocation usually involve detailed
factual examination. A writ court does not normally undertake
that exercise unless a clear jurisdictional error or manifest
arbitrariness is demonstrated. Judicial review is concerned with
legality of the decision-making process and not with reworking
technical calculations as if sitting in appeal over factual findings.
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126. Applying these principles to the present case, the record
shows that the Competent Authority relied on the last sanctioned
plan dated 11th February 2005. Significantly, the Petitioners have
not challenged the authenticity of this sanctioned plan. They have
also not produced material to show that the Architect’s certificate
dated 6th April 2022 is fabricated or mathematically incorrect. The
calculations placed before the authority were based on the built-up
area of Building No. 4 as a percentage of the total proposed
development. The Competent Authority applied Clause B(iv)(1) of
the 2018 Government Resolution and arrived at a figure of 22
percent of the Larger Property. This approach is consistent with the
method prescribed under the Resolution.
127. The Petitioners seek to rely on the MOUs to contend that the
Society’s entitlement should be restricted. However, those clauses
use language such as “not less than,” which ordinarily indicates a
minimum threshold and not a fixed ceiling. More importantly,
those documents are earlier inter-se arrangements and cannot
automatically override the statutory Section 4 MOFA Agreements
for Sale executed later in registered form with flat purchasers.
Once rights of purchasers arise under statutory agreements, the
determination of conveyance area must be aligned with the
statutory scheme and the Government Resolution rather than
private commercial arrangements alone.
128. The Court also notes that the challenge raised by the
Petitioners is essentially to the quantum of area and the factual
computation adopted by the authority. That exercise is more
appropriately undertaken in civil proceedings where evidence can
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be led and tested. Writ jurisdiction is not designed to resolve such
factual controversies unless the decision is shown to be perverse or
wholly unsupported by material.
129. On the material available before the Competent Authority,
there is nothing to indicate arbitrary exercise of power or
misapplication of the 2018 Government Resolution. The authority
adopted the prescribed method, considered the Architect’s
certificate, and arrived at a proportionate area corresponding to
the completed building. In the absence of clear error, this Court
finds no reason to interfere. The Petitioners remain free to pursue
appropriate civil remedies if they seek adjudication on title or
precise quantification, but such disputes cannot form the basis for
setting aside the impugned order in writ jurisdiction.
130. The legal position governing this issue now stands well
settled. In Zainul Abedin Yusufali Massawawala and Others v.
Competent Authority, District Deputy Registrar of Co-operative
Housing Societies, Mumbai and Others, reported in 2016 SCC
OnLine Bom 6028, the Division Bench was confronted with a
grievance substantially similar to the one raised in the present
proceedings. In that case also, the landowner contended that the
Competent Authority, while granting deemed conveyance under
Section 11 of MOFA, had included a larger area than what could
lawfully be conveyed and that the promoter himself did not
possess title over the entire extent. The Court carefully examined
the nature and scope of proceedings under Section 11 and held
that such proceedings are summary in character and are not
intended to finally adjudicate complex questions of title or extent
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of proprietary rights. The Court clarified that where the challenge
is essentially that the conveyance exceeds contractual or legal
entitlement, the proper remedy lies in instituting a substantive civil
action, where evidence can be led and disputed facts can be
adjudicated in detail.
131. The rationale behind this principle is straightforward and
rests on the nature of deemed conveyance itself. An order passed
under Section 11 does not confer any fresh or independent title
upon the society. It merely facilitates transfer of whatever right,
title and interest the promoter is found to possess at that stage.
Therefore, if the promoter or owner asserts that he had no title
over a particular portion, or that the society has obtained
conveyance beyond what was agreed between the parties, such
issues necessarily involve examination of title documents,
contractual interpretation, and factual evidence. These are matters
requiring a full-fledged trial. A writ court exercising jurisdiction
under Article 226 is not designed to undertake such an enquiry.
This approach has been consistently followed in subsequent
decisions of this Court, including Shimmering Heights CHSL and
Others v. State of Maharashtra (Writ Petition No. 3129 of 2016,
decided on 6 April 2016), P.R. Enterprises and Others v. Competent
Authority (Writ Petition No. 11251 of 2016, decided on 27
November 2018), and Mehboob Ali Humza and Others v. District
Sub Registrar (3), Mumbai and Others (Writ Petition No. 3129 of
2016, decided on 24 June 2016), wherein the same principle has
been reiterated that title disputes and disputes regarding exact
entitlement must be left to civil adjudication.
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132. When the above settled principles are applied to the facts of
the present case, the conclusion becomes clear. The core grievance
raised by the petitioners is that the Competent Authority has
granted conveyance of an area larger than what, according to
them, could lawfully be conveyed, and that the Authority has
thereby exceeded its jurisdiction. Even assuming, for the sake of
argument, that such contention raises a triable issue, the nature of
the dispute remains one concerning extent of title and entitlement.
These questions cannot be conclusively resolved in writ
proceedings. The petitioners are not left without remedy. They
remain at liberty to institute a properly constituted civil suit
seeking declaration of their rights, correction of area, or any other
consequential relief permissible in law. The Civil Court alone is
equipped to undertake detailed examination of evidence,
measurement, contractual rights and competing claims.
Entertaining such disputed factual controversies in writ jurisdiction
would amount to converting this Court into a trial forum, which is
neither the purpose nor the scope of jurisdiction under Article 226
of the Constitution.
Misjoinder and joinder of unbuilt buildings as pro-forma parties
133. The Petitioners have raised an objection that the deemed
conveyance application was defective because Building Nos. 1 to 3
and 5 to 10 were shown as parties even though those buildings
had not been constructed. According to them, inclusion of non-
existent or unconstructed buildings amounted to misjoinder and
therefore the entire proceedings stood vitiated. The Society has
explained that these buildings formed part of the larger layout and
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were included only by way of caution, as the exact status of third
party rights in the layout was not fully clear at the time of filing.
134. The legal position on this aspect is settled. Misjoinder of
parties is essentially a procedural defect. Procedure exists to
advance justice and not to defeat it. Unless the inclusion of
unnecessary parties results in confusion, denial of opportunity, or
actual failure of justice, such defect does not render the entire
proceedings invalid. Courts have consistently held that technical
objections of this nature cannot override a substantive decision
unless prejudice is clearly demonstrated. The focus must always
remain on whether the decision-making process became unfair or
whether any party was deprived of a real opportunity to contest
the case.
135. The record further shows that during the course of hearing
before the Competent Authority, it was clarified that the said
buildings were not constructed. The authority has expressly
recorded this factual position in the impugned order and
proceeded accordingly. In other words, the authority did not grant
any benefit or pass any direction on the assumption that those
buildings existed. The factual correction was acknowledged during
the hearing itself, and the proceedings moved forward on the
corrected understanding. Once the authority took note of the
actual status, the initial procedural mistake stood effectively cured.
136. It is also relevant that the Petitioners do not contend that any
necessary party was left out. Their grievance is only that additional
parties were included. The law draws a clear distinction between
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non-joinder of a necessary party and misjoinder of unnecessary
parties. Non-joinder may in some cases affect the validity of
proceedings because a person whose rights are directly affected is
absent. Misjoinder, however, ordinarily does not cause such
consequence unless it can be shown that the presence of extra
parties misled the authority or caused tangible prejudice.
137. In the present case, no material has been placed to show that
inclusion of unconstructed buildings altered the decision,
expanded the scope of conveyance improperly, or deprived the
Petitioners of any defence. The Competent Authority considered
the relevant material relating only to Building No. 4 and the
corresponding entitlement. The proceedings remained focused on
the actual dispute. The Petitioners fully participated and addressed
their submissions on merits. Therefore, the procedural objection
does not translate into any real injustice.
138. Viewed in this manner, the contention of misjoinder is purely
technical. The defect, even if assumed, was noticed and corrected
during the hearing stage. No prejudice has been demonstrated,
and no failure of justice has occurred. Accordingly, the objection
based on misjoinder cannot be accepted as a ground to interfere
with the substantive decision of the Competent Authority.
139. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(i) All the Writ Petitions stand dismissed;
(ii) The impugned order dated 29th August 2022 passed
by the Competent Authority under Section 11 of the
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Maharashtra Ownership Flats Act, 1963, together with the
certificate of deemed conveyance issued pursuant thereto, is
upheld.
(iii) It is clarified that observations made in this judgment
are confined to the validity of the proceedings under Section
11 of MOFA and shall not preclude the parties from pursuing
appropriate civil remedies, if otherwise available in law, in
respect of title disputes or allied claims requiring detailed
adjudication;
(iv) Rule stands discharged. No order as to costs.
140. Pending interlocutory application(s), if any, stand disposed
of.
141. At this stage, learned Advocate for the petitioners seeks
continuation of interim protection. However, for the reasons stated
in this judgment, request for continuation of interim protection
stands rejected.
(AMIT BORKAR, J.)
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