Bombay High Court
Ratan Co Op Hsg. Soc Ltd. vs Competent Authority And District … on 24 February, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:9299
wp1673-2022 & connected-J-F.doc
AGK
ATUL IN THE HIGH COURT OF JUDICATURE AT BOMBAY
GANESH CIVIL APPELLATE JURISDICTION
KULKARNI
Digitally signed by WRIT PETITION NO.1673 OF 2022
ATUL GANESH
KULKARNI WITH
Date: 2026.02.24 INTERIM APPLICATION NO.3546 OF 2023
11:59:47 +0530
Paramanand Builders LLP.,
A Limited Liability Partnership constituted
under the Limited Liability Partnership Act,
2018 having its address at CTS No.905, ECT,
Agarwal Tower, Piramal Nagar, Village-
Pahadi, Goregaon (West), Mumbai 400 062
M/s. Parmanand Buildings Pvt. Ltd.
Current address not known
Last known address is Plot No.26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068. ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Siddhraj Coop. Housing Society Ltd.,
A registered coop. Society having
address at Plot No.A22, Ratan Nagar,
Near Premji Nagar & Daulat Nagar,
S.V. Road, Borivalli (East),
Mumbai 400 066.
3. B.M. Vadgama & Others,
Are holders and members of Ratan
Cooperative Housing Society Limited
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and allottees of plot No.A-22 of estate
of society, current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
4. Pattan Jain Mandal,
A Trust to be allottees of residential
units on plot No.A 22 of estate of
society, Current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
5. Ratan Coop. Housing Society Limited
Alias Rattan Coop. Housing Society Ltd.
Current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066 ... Respondents
WITH
WRIT PETITION NO.2657 OF 2022
Paramanand Builders LLP.,
A Limited Liability Partnership constituted
under the Limited Liability Partnership Act,
2018 having its address at CTS No.905, ECT,
Agarwal Tower, Piramal Nagar, Village-
Pahadi, Goregaon (West), Mumbai 400 062
M/s. Parmanand Buildings Pvt. Ltd.
Current address not known
Last known address is Plot No.26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068. ... Petitioner
V/s.
1. Competent Authority & District Deputy
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Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Patan Jain Mandal Cooperative
Housing Society Ltd.,
A registered coop. Society having
address at Plot No.A20-21,
Survey No.222, Ratan Nagar,
Near Premji Nagar, Borivalli (East),
Mumbai 400 066.
3. B.C. Mehta & Others,
Are holders and members of Ratan
Cooperative Housing Society Limited
and allottees of plot No.A-20-21
of estate of society,
current address not known,
Last known address is Plot No.A-20-21,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
4. Pattan Jain Mandal,
A Trust to be allottees of residential
units on plot No.A 22 of estate of
society, Current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
5. Ratan Coop. Housing Society Limited
Alias Rattan Coop. Housing Society Ltd.
Current address not known,
Last known address is Plot No.A-26/A,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066 ... Respondents
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WITH
WRIT PETITION NO.2656 OF 2022
Paramanand Builders LLP.,
A Limited Liability Partnership constituted
under the Limited Liability Partnership Act,
2018 having its address at CTS No.905, ECT,
Agarwal Tower, Piramal Nagar, Village-
Pahadi, Goregaon (West), Mumbai 400 062
M/s. Parmanand Buildings Pvt. Ltd.
Current address not known
Last known address is Plot No.26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068. ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Shri Sai Sadguru Coop. Housing Society
Ltd., A registered coop. Society having
address at Plot No.A 26, Ratan Nagar,
S.V. Road, Dahisar (East),
Mumbai 400 068.
3. Shree Sadguru Enterprises,
Promoters/Developers, A Proprietorship
Partnership firm having address as per
Agreement - 17/27, Bhanubhai Chawl,
Standard Mills Place, New Prabhadevi
Road, Bombay 400 025
4. Jagdishnarayan Agarwal
5. Jamnadas Agarwal,
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Both (4) & (5) are holders & members
of Ratan Coop. Housing Society Ltd.
and allottees of Plot No.26 of Estate
of Society, current address not known
Last known address is Plot No.A 26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068.
6. Ratan Coop. Housing Society Limited
Alias Rattan Coop. Housing Society Ltd.
Current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066 ... Respondents
WITH
WRIT PETITION NO.4375 OF 2022
Geopreneur Corp. Private Limited,
(formerly known as Ashish Builders Pvt.
Ltd.) through it's Director, Mr. Rohan
Agarwal, having its registered office at
Gala No.1001, 10th Floor, First Avenue,
Opp. Inorbit Mall, CTS No.1199/E of
Village Malad, Link Road, Malad (West),
Mumbai - 400 064 ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Jai Ashish Coop. Housing Society Ltd.,
through Chairman / Secretary,
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having its office at D.N. Dube Road,
A/18, Ratan Nagar, Dahisar (East),
Mumbai 400 068.
3. Rattan Coop. Housing Society Ltd.,
Ratan Nagar, Dahisar (East),
Mumbai 400 068
(a) Mr. Nitin Chandrakant Patel,
Secretary of Rattan CHS Ltd.,
having address at 42/9, Jawahar
Nagar, Goregaon (West),
Mumbai - 400 062.
(b) Mr. Kailash C. Jain
Chairman of Rattan CHS Ltd.,
having address at 42/9, Jawahar
Nagar, Goregaon (West),
Mumbai - 400 062.
4. Sanjay Shah,
having his address at 9, Dhoop Chhaon,
3 Meera Baug, Santacruz West,
Mumbai 400 054. ALSO AT
4/5 Dhoop Chhaon, 3 Meera Baug,
Santacruz (West), Mumbai 400 054.
5. M/s. Param Anand Builders Pvt. Ltd.
alias M/s. Paramanand Builders Pvt.
Ltd. Shreepal Industrial Estate,
Oshiwara, S.V. Road, Jogeshwari (W),
Mumbai 400 102
OR
Agarwal Golden Compound,
Fun Republic Road, Plot No.13/A
Behind Balaji Telefilms, Off. New Link
Road, Andheri (W), Mumbai 400 053
6. i) a) Rajkumar Sheth
b) Prakash Sheth
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c) Janakraj Sheth
d) Dharampal Sheth
e) Ramesh Sheth
f) Naresh Sheth
ii) Shree Gowardhan Sansthan Limited,
Wai Pune, Mumbai.
iii) a) Kulbhushan Jain
b) Sumatiprashad Jain
c) Sheetal Prashad Jain
d) Shadilal Jain
e) Rajendra Bhushan Jain
f) Ratan Bhushan Jain
g) Munimal Motilal Jain
h) Prem Bhushan Jain
i) Jimmo Dewara Jain
j) Jagan Bhushan Jain
k) Surendranath Jain
Last known address of Opp.6(i) to
(iii) k., Survey No.222, Hissa No.1 to 5,
S.No.228, H.No.3, S.No.229,
H.No.3 & 5, CTS No.1860,
Village Dahisar, Taluka Borivali ... Respondents
WITH
WRIT PETITION NO.2280 OF 2024
Paramanand Builders LLP.,
A Limited Liability Partnership constituted
under the Limited Liability Partnership Act,
2018 having its address at CTS No.905, ECT,
Agarwal Tower, Piramal Nagar, Village-
Pahadi, Goregaon (West), Mumbai 400 062
previously known as Parmanand Buildings
Pvt. Ltd. Last known address is Plot No.26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068.
... Petitioner
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V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Gauri Sadhana Cooperative Housing
Society Limited, a registered Coop.
Society, having address at Plot No.A 24,
CTS No.1860/28 Ratan Nagar,
S.V. Road, Dahisar (East),
Mumbai - 400 068.
3A. Nutan Shivlal Maru,
3B. Ajitbhai S. Maru,
3C. Kanta M. Parikh,
3D.
Mathubhai D. Parikh,
3E.
Jamnadas Agarwal
All 4 are members of Ratan Coop.
Housing Society Limited, and allottees
of Plot No.24, Ratan Nagar, S.V. Road,
Dahisar (East), Mumbai 400 068.
4. Ratan Coop. Housing Society Ltd.,
alias Rattan Coop. Housing Society
Ltd., Plot No.26/A, Ratan Nagar,
S.V. Road, Dahisar (East),
Mumbai 400 068. ... Respondents
WITH
WRIT PETITION NO.9563 OF 2023
Ratan Coop. Housing Society Ltd.,
alias Rattan Coop. Housing Society Ltd.,
Current address not known, last known
address is Plot No.A 22, Ratan Nagar,
S.V. Road, Borivali (East), Mumbai 400 068. ... Petitioner
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V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Siddhraj Coop. Housing Society Ltd.,
A registered coop. Society having
address at Plot No.A22, Ratan Nagar,
Near Premji Nagar & Daulat Nagar,
S.V. Road, Borivalli (East),
Mumbai 400 066.
3. B.M. Vadgama & Others,
Are holders and members of Ratan
Cooperative Housing Society Limited
and allottees of plot No.A-22 of estate
of society, current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
4. Pattan Jain Mandal,
A Trust to be allottees of residential
units on plot No.A 22 of estate of
society, Current address not known,
Last known address is Plot No.A-22,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
5. Paramanand Builders LLP., ... Respondents
A Limited Liability Partnership
constituted under the Limited Liability
Partnership Act, 2018 having its address
at CTS No.905, ECT, Agarwal Tower,
Piramal Nagar, Village-Pahadi,
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Goregaon (West), Mumbai 400 062
M/s. Parmanand Builders Pvt. Ltd.
Current Address not known
last known address is Plot No.26/A,
Ratan Nagar, S.V. Road,
Dahisar (East), Mumbai 400 068
WITH
WRIT PETITION NO.9564 OF 2023
Ratan Coop. Housing Society Limited,
Ratan Nagar, Dahisar (East), Mumbai 400 068
through it's Secretary Amrishchandra Agarwal ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Shri Sai Sadguru Coop. Housing Society
Ltd., A registered coop. Society having
address at Plot No.A 26, Ratan Nagar,
S.V. Road, Dahisar (East),
Mumbai 400 068.
3. Shree Sadguru Enterprises,
Promoters/Developers, A Proprietorship
Partnership firm having address as per
Agreement - 17/27, Bhanubhai Chawl,
Standard Mills Place, New Prabhadevi
Road, Bombay 400 025
4. Jagdishnarayan Agarwal
5. Jamnadas Agarwal,
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Both (4) & (5) are holders & members
of Ratan Coop. Housing Society Ltd.
and allottees of Plot No.26 of Estate
of Society, current address not known
Last known address is Plot No.A 26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068.
6. Paramanand Builders LLP., alias
M/s. Parmanand Builders Pvt. Ltd.
Shreepal Industrial Estate, Oshiwara,
S.V. Road, Jogeshwari (West),
Mumbai 400 102 OR
Agarwal Golden Compound,
Fun Republic Road, Plot No.13/A,
Behind Balaji Telefilms Off. New Link
Road, Andheri (West), Mumbai 400 053 ... Respondents
WITH
WRIT PETITION NO.9562 OF 2023
Ratan Coop. Housing Society Ltd.,
alias Rattan Coop. Housing Society Ltd.,
Current address not known, last known
address is Plot No.A 26/A, Ratan Nagar,
S.V. Road, Borivali (East), Mumbai 400 068
through its Secretary Amrishchandra Agarwal ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Patan Jain Mandal Coop. Housing
Society Ltd., A registered Cooperative
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Society having address at Plot
No.A20-21, 222, Rata Nagar, Near
Premji Nagar, Borivali (East),
Mumbai 400 066
3. B.C. Mehta,
Ajay Mehta
Amish Agarwal
Praful Agarwal,
Are holders and members of Ratan
Cooperative Housing Society Limited
and allottees of plot No.A-20-21
of estate of society, current address
not known, Last known address is
Plot No.A-22, Ratan Nagar, S.V. Road,
Borivali (East), Mumbai - 400 066
4. Pattan Jain Mandal,
A Trust to be allottees of residential
units on plot No.A 20 of estate of
society, Current address not known,
Last known address is Plot No.A-20-21,
Ratan Nagar, S.V. Road, Borivali (East),
Mumbai - 400 066
5. Paramanand Builders LLP.,
A Limited Liability Partnership
constituted under the Limited Liability
Partnership Act, 2018 having its address
at CTS No.905, ECT, Agarwal Tower,
Piramal Nagar, Village-Pahadi,
Goregaon (West), Mumbai 400 062
M/s. Parmanand Builders Pvt. Ltd.,
Current Address not known,
Last known address is Plot No.26/A,
Ratan Nagar, S.V. Road, Dahisar (East),
Mumbai 400 068. ... Respondents
12
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WITH
WRIT PETITION NO.7275 OF 2025
Ratan Coop. Housing Society Ltd.,
alias Rattan Coop. Housing Society Ltd.,
Current address not known, last known
address is Plot No.A 22, Ratan Nagar,
S.V. Road, Dahisar (East), Mumbai 400 066 ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Greenways Coo. Housing Society Ltd.,
a registered Coop. Society having
address at Building N0.7, Ratan Nagar,
Dahisar (East), Mumbai 400 068
3. Omprakash Agarwal & Others,
Are holders & members of Ratan Coop.
Housing Society Limited, and allottees
of Plot No.A 7 of estate of society
current address not known
last known address is Plot No.A 7,
Ratan Nagar, Dahisar (East),
Mumbai - 400 068
4. Paramanand Builders Private Ltd.,
a Company incorporated under the
Indian Companies Act, 1961 having
address as per Agreement Shreepal
Insutrial Estate, Oshiwara, S.V. Road,
Jogeshwari, Mumbai ... Respondents
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WITH
WRIT PETITION NO.17823 OF 2024
Premanand Builders Private Limited,
a Company incorporated under the Indian
Companies Act, 1961 having address as per
Agreement Shreepal Industrial Estate,
Oshiwara, S.V. Road, Jogeshwari, Mumbai
NOW KNOWN as Param Anand Builders LLP,
TPS CTS No.905, ECT, Agarwal Tower,
Village Pahadi, Goregaon (West), Off S.V.
Road, Piramal Nagar, Mumbai 400 062 ... Petitioner
V/s.
1. Competent Authority & District Deputy
Registrar, Cooperative Societies,
Mumbai City (4), having it's office
at 2nd Floor, Bhandari Coop. Bank,
P.L. Kale Guruji Marg, Dadar West,
Mumbai 400 028.
2. Greenways Coo. Housing Society Ltd.,
a registered Coop. Society having
address at Building N0.7, Ratan Nagar,
Dahisar (East), Mumbai 400 068
3. Omprakash Agarwal & Others,
Are holders & members of Ratan Coop.
Housing Society Limited, and allottees
of Plot No.A 7 of estate of society
current address not known
last known address is Plot No.A 7,
Ratan Nagar, Dahisar (East),
Mumbai - 400 068
4. Ratan Coop. Housing Society Ltd.,
alias Rattan Coop. Housing Society Ltd.,
Current address not known,
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last known address is Plot No.A 22,
Ratan Nagar, S.V. Road,
Dahisar (East), Mumbai 400 066
5. Joint Sub Registrar,
No.8, Borivali (East), Mumbai ... Respondents
Mr. Girish Godbole, Senior Advocate with Mr. Ankit
Lohia, Ms. Aditi Bhatt and Ms. Jyoti Ghag i/by Dua
Associates for the petitioner in WP/1673/2022 &
4375/2022.
Mr. Ankit Lohia, with Ms. Aditi Bhatt, Ms. Jyoti Ghag &
Mr. Shailesh Prajapati i/by Dua Associates for the
petitioner in WP/2280/2022, 2656/2022, 2657/2022,
4375/2022 & WP/17823/2024 and for respondent
Nos.5 to 7 in WP/9562/2023, 9563/20223 &
9564/2023 & for respondent No.4 in WP/7275/2025.
Mr. Piyush Raheja with Mr. Rahul Vyas for the
petitioner in WP/9563/2023, 9562/2023, &
9564/2023 & for respondent in WP/2657/2022,
2656/2022, 4357/2022, & 2280/2024.
Mr. Piyush Raheja with Mr. A. Loya and Rs. Rahul Vyas
for the petitioner in WP/7275/2025 & for respondent
No.4 in WP/17823/2024.
Mr. Vibhanshu Pandey i/by Mr. Rahul Karnik for
respondent No.2 in WP/2280/2022.
Mr. Simil Purohit with Mr. Kartik Tiwari, Mr. Devang
Shah and Mr. Aditya Kanchan i/by Lakshyavedhi Legal
for respondent No.2 in WPL/10773/2023 &
WP/2656/2022.
Mr. Vishal Tambat for respondent No.2 in
WP/17823/2024.
Mr. Prabhakar M. Jadhav for respondent No.6(ii) in
WP/4375/2023.
Ms. Aloka A. Nadkarni, AGP for respondent No.1-State
in WP/1673/2022.
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Mrs. M.S. Srivastava, AGP for respondent No.1-State in
WP/2280/2024.
Mr. P.V. Nelson Rajan, AGP for respondent No.1-State in
WP/2657/2022.
Ms. Savina R. Crasto, AGP for respondent No.1-State in
WP/2656/2022.
Ms. S.D. Chipade, AGP for respondent No.1-State in
WP/9563/2023.
Mr. Y.D. Patil, AGP for respondent No.1-State in
WP/9562/2023.
Mr. S.L. Babar, AGP for respondent No.1-State in
WP/9564/2023.
Dr. Dhruti Kapadia, AGP for respondent No.1-State in
WP/4375/2022.
Mrs. V.S. Nimbalkar, AGP for State in WP/17823/2024.
CORAM : AMIT BORKAR, J.
RESERVED ON : JANUARY 20, 2026 &
FEBRUARY 17, 2026
PRONOUNCED ON : FEBRUARY 24, 2026
JUDGMENT:
1. By the present writ petition, the petitioner assails the order
dated 17 March 2021 passed by Respondent No. 1, whereby a
unilateral deemed conveyance in respect of the subject plot has
been granted.
2. The material facts giving rise to the present petition are as
follows. One Surendranath Jain and others, along with Rajkumari
Seth and others, were the original owners of land bearing Survey
No.222, Hissa Nos. 1 to 5, Survey No. 228, Hissa No. 3, and
Survey No. 229, Hissa Nos. 3 and 5, situated at Dahisar. By an
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Agreement to Sell dated 15 April 1963, Surendranath Jain and
others agreed to sell the larger property to the promoters of
Respondent No. 5. Similarly, by a separate Agreement to Sell dated
20 June 1963, Rajkumar Seth and others agreed to transfer their
interest in the said property to the same promoters. Respondent
No. 5 came to be registered under the Maharashtra Cooperative
Societies Act on 20 June 1963. Disputes subsequently arose
between the parties. Since the existence of such disputes is not in
controversy, their details are not set out at this stage. The
petitioner reserves liberty to refer to the same and place relevant
documents on record, if necessary. Eventually, Respondent No. 5
instituted Special Civil Suit No. 1649 of 1979 before this court
against Surendranath Jain and others and Rajkumar Seth and
others. The parties resolved the disputes by filing consent terms.
Upon such settlement, Respondent No. 5 became entitled to and
vested with all right, title, and interest in the larger property
admeasuring 41,279.95 sq. mtrs. The property records were
accordingly mutated to reflect the name of Respondent No. 5.
Respondent No. 5 thereafter subdivided the larger property into
approximately 31 smaller plots. By two separate letters of
allotment, plot No. A/22 was allotted on monthly tenancy basis to
Mr. Rajendra Patwa and Mr. Pandit Gauri Shankar, subject to the
terms and conditions contained therein. Share certificates were
issued in their names. In 1980, the said allottees transferred their
rights in favour of Mr. Virendra Maru and Mr. Bharat M. Vadgama.
3. Respondent No. 5 admitted Mr. Virendra Maru and Mr.
Bharat M. Vadgama as members and issued a fresh Letter of
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Allotment in their favour. Under the said letter, the plot was
allotted to them with an agreement to execute a lease either in
their favour or in favour of their nominee, including a cooperative
housing society of flat purchasers to be formed in respect of the
building to be constructed on the plot and sold on ownership basis.
The letter further stipulated that such cooperative housing society
would make a joint application under the Maharashtra
Cooperative Societies Act for transfer of shares and all right, title,
and interest held by the said members. The share certificate was
accordingly amended to reflect their names. The petitioner relies
upon the relevant clauses of the Letter of Allotment issued to Mr.
Virendra Maru and Mr. Bharat M. Vadgama. Clause 7 of the Letter
of Allotment provided that the society would execute a lease in
favour of the allottees or their nominee, including a cooperative
housing society or other body corporate, subject to compliance
with the statutory requirements under the Maharashtra
Cooperative Societies Act, full payment of consideration,
completion of construction, and obtaining of occupation certificate
from the Municipal Corporation of Greater Bombay. The
contractual arrangement thus contemplated creation of leasehold
rights alone in favour of the allottees or their nominee society.
4. Pursuant thereto, Mr. Virendra Maru and Mr. Bharat M.
Vadgama executed a Development Agreement dated 28 April 1980
in favour of the petitioner, assigning only development rights in
respect of the plot. The agreement expressly recorded that the plot
was leasehold in nature and that a lease deed would be executed
by Respondent No. 5. The Development Agreement was expressly
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made subject to the conditions of the Letter of Allotment, as
recorded in Recital (iii) thereof. The petitioner relies upon the
relevant clauses of the Development Agreement. Recital (iii)
records that the vendors covenanted to construct buildings on the
plot and to sell flats on ownership basis, subject to the terms of the
Letter of Allotment and the lease deed to be executed by the
society in their favour or in favour of their nominee. Clause 11
provides that the developers would, at their own cost and with the
cooperation of the vendors or the society, obtain necessary
permissions under the Urban Land Ceiling Act for lease of the land
in favour of their nominee, though applications were to be made in
the name of the vendors. Clause 12 stipulates that for leasing the
plot to the proposed society or company, the vendors would make
out a marketable title free from encumbrances. Upon completion
of development, the lease was to be executed in favour of the
developers or their nominee, including a cooperative society of flat
purchasers, with the developers joining as confirming party. Clause
17 provides that the vendors or the society would execute an
indenture of lease for a term of 99 years in favour of the
developers or their nominee, with an option of renewal, subject to
production of income tax clearance and requisite permissions.
Clause 25 entitles the developers to assign their rights under the
Development Agreement, subject to its terms and the conditions of
the Letter of Allotment.
5. In exercise of the development rights, the petitioner
constructed a building comprising ground plus four upper floors
and entered into agreements for sale with various flat purchasers.
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These agreements expressly recorded that the petitioner would
procure a sub lease of the plot from the allottees or members. The
grant of such sub lease was contingent upon execution of the
primary lease by Respondent No. 5 in favour of the allottees. The
petitioner further relies upon specific provisions of the agreements
for sale executed with the flat purchasers. Clause 9 clarifies that
purchasers would have rights only in respect of their respective
flats, and that common areas would remain the property of the
sellers until transfer to the proposed society or company. Clause 10
records that the plot was to be obtained on lease from Rattan Co
operative Housing Society Ltd., and that references to conveyance
in the agreement meant the lease to be executed in favour of the
society. It further imposes liability upon purchasers to pay
proportionate lease rent, taxes, stamp duty, registration charges,
and other outgoings in respect of the lease. Clause 24 restrains
purchasers from transferring or encumbering their flats until
execution of sub lease or lease in favour of the cooperative society
or limited company and until full payment of dues. Clause 34
provides that after completion of construction, registration of the
society or company, sale of all flats, and receipt of all dues, the
sellers would procure execution of an indenture of lease of the
land and building in favour of the society or company.
6. The petitioner also relies upon a Package Deal Agreement
dated 7 October 1981 executed between the petitioner and
Respondent No. 4, which similarly proceeds on the basis that the
plot was to be held on lease.
7. It is further stated that Respondent No. 5 continued to be
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reflected as owner of the plot. The Intimation of Disapproval and
Commencement Certificate were issued in its name. The title
certificate annexed to agreements with members of Respondent
No. 2 also records Respondent No. 5 as owner.
8. In February 2021 Respondent No. 2 filed an application
under Section 11(3) of the Maharashtra Ownership Flats Act
before Respondent No. 1 seeking unilateral deemed conveyance of
the plot on the basis of the agreements executed with its members.
An amendment application was thereafter filed noting conversion
of M/s. Param Anand Builders Pvt. Ltd. into Param Anand Builders
LLP, and the same was allowed. The petitioner filed an affidavit in
reply dated 27 May 2021 opposing the application and placing
relevant facts on record. By the impugned order, Respondent No. 1
allowed the application and granted unilateral deemed conveyance
of the plot in favour of Respondent No. 2, issuing a certificate to
that effect.
9. During the course of hearing, all parties were specifically
called upon to place on record a note clarifying in which
proceedings, if any, Respondent Ratan Society had not been served
before the competent authority. Pursuant thereto, separate notes
were filed by all concerned parties. A careful perusal of these notes
shows that in each of the matters referred to, Ratan Society had
entered appearance before the competent authority and had
contested the proceedings.
10. Mr. Godbole, learned Senior Advocate and Mr. Lohia, learned
Advocate submitted that the petition challenges the impugned
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order on the ground of inherent lack of jurisdiction to direct
execution of a conveyance of sale contrary to the governing
contractual documents. They contended that the Allotment Letter
dated 9 January 1980 conferred only leasehold rights upon Mr.
Pravin Shah and Ms. Vanila Shah. The Development Agreement
dated 22 June 1980 executed thereafter in favour of Respondent
No. 5 also contemplated grant of lease alone. According to them,
such arrangement did not require registration as a conveyance of
sale. They further invited attention to Clauses 1, 9, and 12 of the
agreements executed under the Maharashtra Ownership Flats Act,
which expressly provide that any reference to “conveyance” shall
be construed to mean “lease”. Clauses 28 and 37 likewise envisage
execution of a lease. On this basis, it was submitted that the
society can claim only a lease in terms of the Allotment Letter,
Development Agreement, and the agreements executed with flat
purchasers. Since the developer’s obligation was limited to transfer
of leasehold rights, the direction to execute a conveyance of sale is,
according to him, ex facie illegal.
11. They further submitted that the reliance placed by the
Society on Clause 7 of the agreement under the Maharashtra
Ownership Flats Act is misplaced and must be read harmoniously
with Clause 12, which clarifies that the term “conveyance” shall be
understood as “lease”. During the course of hearing, Respondent
No. 2 Society contended that no valid lease existed in favour of the
developer. This contention, according to learned Senior Counsel, is
impermissible for two reasons. First, such a plea was not raised
before Respondent No. 1 and cannot be permitted to be urged for
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the first time in writ jurisdiction. Second, the Society claims
through the developer and is therefore estopped from disputing
the title or interest of its own predecessor in interest.
12. They submitted that the impugned order proceeds on an
erroneous assumption that the Society is entitled to conveyance of
sale on the premise that the land is held freehold by Respondent
No. 2. This approach, according to him, ignores the express
contractual stipulations between the Society and the promoters
who developed the property. Respondent No. 3 was not a party to
such agreements and cannot be compelled to execute a
conveyance of sale when the contractual obligation was confined
to grant of lease. It was contended that the promoter’s statutory
obligation under Section 11 of the Maharashtra Ownership Flats
Act stands discharged upon execution of a lease in accordance
with the agreements. The direction to grant conveyance of sale is
therefore perverse and contrary to the binding terms of the
agreements, which Respondent No. 1 was obliged to respect.
13. Learned Senior Counsel further submitted that Respondent
No. 1 has placed reliance upon the consent terms filed in Suit No.
1648 of 1979, whereby Ratan Co operative Housing Society
Limited stepped into the shoes of the original owners, namely
Rajkumar Seth and others, who were defendants in Suit Nos. 1648
of 1979 and 1649 of 1979. According to him, the legal
consequence is that the status of the original allottees from Ratan
Co operative Housing Society Limited and those claiming through
them continues as lessees or tenants, subject to a specific covenant
that only leasehold rights would be granted. Such covenant binds
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the Society. It was further submitted that in a similar matter arising
from the same larger property, wherein analogous documents were
executed, the competent authority granted only assignment of
lease and not conveyance of sale. The said order was upheld by
this Court in Writ Petition No. 6167 of 2022.
14. They submitted that Respondent No. 1 failed to appreciate
the entire chain of documents, which uniformly contemplate
execution of a lease and not a conveyance in favour of Respondent
No. 2. The impugned order travels beyond the scope of the
agreements executed between the parties and is therefore liable to
be set aside. Respondent No. 1 could not have directed execution
of a conveyance of sale when the petitioner possessed only the
right and obligation to grant leasehold interest. The authority was
bound to adjudicate strictly in accordance with the contractual and
statutory framework placed before it.
15. It was lastly submitted that several writ petitions have been
instituted challenging similar orders passed on identical grounds.
A tabular statement has been placed on record indicating the writ
petition numbers, dates of impugned orders, and the respective
plot numbers involved. Although those matters were not
independently argued, it was contended that the challenge therein
rests on the same legal foundation as in the present petition.
16. Mr. Raheja, learned Advocate for the petitioner, submitted
that the petitioner had allotted various plots to different allottees,
who in turn entered into independent development agreements
with separate developers. He invited attention to Clause 7 of the
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respective Allotment Letters, which stipulates that the petitioner
agreed to grant leasehold rights in favour of the allottee or its
nominee, including a co operative housing society of flat
purchasers to be formed on the plot. According to him, there is no
provision in the Allotment Letters for execution of a conveyance of
sale. He submitted that construction on the plots was undertaken
by the allottees or their nominated developers without any
contractual privity with the petitioner and without imposing any
obligation upon the petitioner to execute a conveyance.
17. He further submitted that under Clauses (ii), (1), (2), (12),
and (17) of the Development Agreement executed between the
allottee, namely Respondent No. 3, and the developer, namely
Respondent No. 5, in Writ Petition No. 9648 of 2023, it was
expressly agreed that a lease deed would be executed in favour of
the co operative society to be formed by the developer. Similar
stipulations, according to him, are contained in all the
development agreements pertaining to the larger property. He also
referred to Clauses 3, 10, and 14 of the agreements executed
under the Maharashtra Ownership Flats Act, which, according to
him, restrict the developer’s authority to execution of a lease in
favour of the proposed co operative society. Clause 5(a) of the said
agreement further provides that in the event of any inconsistency
between the agreement for sale and the Development Agreement,
the terms of the Allotment Letter shall prevail. The agreements
under the Maharashtra Ownership Flats Act expressly refer to the
Allotment Letters as well as the Development Agreements. On this
basis, it was contended that the Society is entitled only to a lease
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in terms of the governing documents. Since the developer’s
obligation was confined to transfer of leasehold rights, the grant of
conveyance of sale is, according to him, unsustainable in law.
18. It was submitted that the impugned orders passed by
Respondent No. 1 are contrary to the express terms agreed
between the parties in the Allotment Letters, Development
Agreements, and the agreements executed under the Maharashtra
Ownership Flats Act. According to learned counsel, Respondent
No. 1 has disregarded the contractual framework binding the
parties and has issued directions inconsistent therewith.
19. He further submitted that Respondent No. 1 has erroneously
proceeded on the footing that the Society is entitled to conveyance
of sale on the premise that the petitioner holds the land as
freehold owner. According to him, the nature of the petitioner’s
title does not alter the contractual obligations undertaken in the
relevant agreements. The petitioner is not a party to the
agreements executed under the Maharashtra Ownership Flats Act
and cannot be compelled to convey its title in favour of the Society
on that basis. Learned counsel also placed reliance upon a similar
matter arising from the same larger property, wherein Mahavir Co
operative Housing Society had sought conveyance. In that case,
where similar documents were executed, the competent authority
directed only assignment of lease and not execution of conveyance
of sale. The said order was upheld by this Court in Writ Petition
No. 6167 of 2022. It was lastly submitted that the factual matrix in
Writ Petition No. 9562 of 2023 is identical to that in Writ Petition
Nos. 9563 of 2023 and 9564 of 2023. On that basis, it was urged
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that similar orders be passed in the connected matters.
20. Per contra, Mr. Purohit, learned Senior Advocate, submitted
that the present writ petition filed by the developer, namely
Geopreneur Corp Pvt. Ltd., and similar petitions filed by Param
Anand Builders, are not maintainable in law. He contended that
the developer, not being the owner of the plot in question, lacks
locus standi to challenge the impugned order. It is undisputed that
no sale deed has been executed in favour of the petitioner by the
original owner, Respondent No. 3. In the absence of title to the
land, the petitioner cannot question the grant of conveyance in
favour of the Society. On this ground alone, the petition, according
to him, deserves dismissal.
21. He further submitted that the owner, namely Ratan Co
operative Housing Society Limited, has independently instituted
Writ Petition No. 7202 of 2023 challenging the same impugned
order. Since the present respondent is also arrayed as Respondent
No. 2 in the said petition, he proposes to address those contentions
in the present submissions. It was submitted that Respondent No. 3
assails the impugned order primarily on two grounds. First, that no
notice was served upon it prior to filing of the application. Second,
that under the agreements executed with the members of
Respondent No. 2 under the Maharashtra Ownership Flats Act, it
had agreed to grant only leasehold rights.
22. Learned Senior Counsel submitted that the aforesaid
contentions are misconceived and untenable for the reasons set
out hereafter. He invited attention to paragraph 4 of the impugned
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order, which records that a public notice dated 28 June 2019 was
issued to afford adequate opportunity to all concerned parties. He
contended that the plea of want of notice is mala fide. The petition
in Writ Petition No. 7202 of 2023 is verified by Mr. Amrishchandra
Agarwal, who is related to Mr. Rohan Agarwal, the director of
Geopreneur Corp Pvt. Ltd., which constructed the building of
Respondent No. 2 Society and was arrayed as Opponent No. 1
before the Competent Authority. The said developer not only
appeared but actively contested the proceedings. In such
circumstances, it is implausible that the alleged authorised
representative of Respondent No. 3 was unaware of the
proceedings.
23. He submitted that it is undisputed that Respondent No. 3,
namely Ratan Co operative Housing Society Limited, is the owner
of the plot. The Municipal Corporation of Greater Mumbai, by its
letter dated 26 February 1980, while granting permission to
Respondent No. 3 to undertake construction on the larger property
including the subject plot, imposed certain conditions, as the land
was subject to Public Housing reservation. Condition (f)
specifically prohibited leasing or resale of the plots for a period of
ten years. It is submitted that for this reason Respondent No. 3
merely allotted the plot to Mr. Pravin Shah and Ms. Vanila Shah.
Owing to the subsisting Public Housing reservation, no executed
lease exists between Respondent No. 3 and any other party even as
on date. Without prejudice to the above, it was submitted that
such allotment could at best be construed as creating a principal
agent relationship.
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24. He further submitted that Respondent No. 3 cannot rely
upon the agreements executed under the Maharashtra Ownership
Flats Act, as it was not a party thereto. It is pertinent that
Respondent No. 3 obtained the Intimation of Disapproval and
Commencement Certificate for construction of the structure
occupied by Respondent No. 2 Society. In view thereof, Respondent
No. 3 falls within the definition of “promoter” under Section 2(c)
of the Maharashtra Ownership Flats Act, 1963. Reliance is placed
on the judgment of this Court in Farhat Co operative Housing
Society Ltd. v. Malkani Enterprises, 2014 SCC OnLine Bom 1265 ,
wherein it has been held that an owner who obtains IOD and
Commencement Certificate and causes construction through a
developer would qualify as a promoter and is obligated to ensure
that the society receives what it is entitled to under the agreement
executed with flat purchasers. It was further held therein that the
deemed conveyance must be construed in the context of the rights
held by the developer and cannot be faulted on the ground of
vagueness.
25. He also relied upon the decision of this Court in Mr. Haresh
Bhatia and Others v. District Deputy Registrar, Co operative
Societies, Mumbai City (4), in Writ Petition No. 18739 of 2024,
wherein it has been observed that Section 11(1) of the
Maharashtra Ownership Flats Act obligates the promoter to
complete his title and convey to the society his right, title, and
interest in the land and building, meaning thereby the title which
the promoter holds must be transferred to the flat purchasers’
society. In the present case, Respondent No. 3, being the owner
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and promoter with clear title, cannot contend that only leasehold
rights are transferable.
26. It was further submitted that the Maharashtra Ownership
Flats Act mandates the promoter to convey title in favour of the
organisation or society of flat purchasers. Even assuming, without
admitting, that Respondent No. 3 is entitled to rely upon the
agreements executed with flat purchasers, Clause 45 of the said
agreement expressly provides that the agreement shall always be
subject to the provisions of the Maharashtra Ownership Flats Act,
1963 and the Rules framed thereunder. The said clause stipulates
that the agreement shall remain subject to the statutory provisions
in force, including any amendment or re-enactment thereof. He
submitted that Section 11 of the Maharashtra Ownership Flats Act
was amended in 2008, making it obligatory for the promoter to
convey the plot of land in favour of the society or association of
flat purchasers. In view of the statutory mandate, Respondent No.
2 is entitled to conveyance of the subject plot from Respondent No.
3 and other concerned parties.
27. In the above circumstances, it was submitted that no case is
made out by the petitioner warranting interference with the
impugned order. The writ petitions, therefore, deserve to be
dismissed with costs.
REASONS AND ANALYSIS:
I. Statutory Framework Must Govern the Dispute
28. To properly deal with the objections raised by the promoters,
it is necessary to step back and examine the full statutory scheme
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under the Maharashtra Ownership Flats Act and the Rules framed
under it. The dispute cannot be resolved by picking isolated
clauses from private agreements and treating them as final. Private
contracts operate within the limits fixed by statute. When a
legislation creates rights in favour of flat purchasers and imposes
duties on promoters, those duties cannot be diluted by drafting
choices made between private parties. Therefore, the correct
approach is to first understand the structure of the Act, the
purpose behind it, and the relationship it creates between
promoter and flat purchaser. Only after understanding that scheme
can individual clauses in agreements be properly interpreted.
29. The Act was enacted to regulate the promotion, construction,
sale, management, and transfer of flats sold on ownership basis in
Maharashtra. The legislative history shows that the law was
brought in to address widespread abuse in the housing sector.
Before the enactment of MOFA, flat purchasers often paid full
consideration yet remained without clear title to the land. Societies
were not formed in time. Conveyance of the property was delayed
indefinitely. Promoters retained control over land even after selling
all flats, leaving purchasers dependent and legally insecure. The
Act was designed to correct this imbalance. It shifts the focus from
the promoter’s convenience to the purchaser’s protection. The
entire scheme of the statute must therefore be read as consumer
protective legislation meant to ensure that purchasers ultimately
receive collective ownership through their society.
30. Under Section 2(c) MOFA, the term “Promoter” has been
defined as under:
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“(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;
31. 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
registered under the Registration Act, 1908 (hereinafter in
this 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
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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.
(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;”
32. 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 a33
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wp1673-2022 & connected-J-F.doccooperative 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:
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.”
33. 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 is34
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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).
(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 issuing35
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or any other appropriate Registration Officer under the
Registration Act, 1908, certifying that it is a fit case for
enforcing unilateral execution, of conveyance deed
conveying the right, title and interest of the promoter in the
land and building in favour of the applicant, as deemed
conveyance.
(5) On submission by such society or as the case may be,
the Company or the association of apartment owners, to the
Sub-Registrar or the concerned appropriate Registration
Officer appointed under the Registration Act, 1908, the
certificate issued by the competent authority 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’.
34. 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).”
35. When these provisions are read together, a clear sheme
emerges. The promoter constructs and sells flats through
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registered agreements. Purchasers are informed of their rights. A
society is formed. The promoter then conveys his entire interest in
the land and building to that society. The Rules ensure that the
agreement itself reflects this structure. This statutory plan governs
the dispute before the Court. Private arrangements, however
carefully drafted, must operate within this sheme and cannot
override it.
III. Legislative Intent Behind Broad Promoter Definition:
36. Section 2(c) of the Act gives a wide meaning to the
expression “promoter”. The Legislature did not confine the term to
a single category of person. It provides that a promoter means a
person, and it expressly includes a partnership firm, a body or an
association of persons, whether registered or not, who constructs
or causes to be constructed a block or building of flats for the
purpose of selling some or all of them to others. It further includes
assignees. The definition goes one step further. It clarifies that
where the person who builds and the person who sells are
different, both are covered within the expression “promoter”.
37. The Legislature was aware of common practices in the real
estate field. Often, the landowner enters into an arrangement with
a developer. One party secures permissions and title. Another party
undertakes construction. Yet another markets and sells flats. If the
definition were narrow, each participant could disclaim
responsibility by pointing to the other. The landowner might say
that he only gave development rights. The developer might say he
is not the owner. The selling agent might say he only marketed the
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flats. In such a situation, flat purchasers would be left without a
clear person against whom statutory duties could be enforced. By
including any person who constructs or causes construction, and
by expressly covering situations where the builder and seller are
different, the Act prevents such avoidance. If the owner obtains
permissions and causes construction through a developer, he
cannot escape by saying that he did not personally lay bricks. If the
developer builds and sells though the land stands in the name of
another, he too falls within the definition. Even assignees are
included so that rights and obligations travel with the project.
38. The Act requires execution of a registered agreement. It
mandates disclosure. It obliges formation of a society. It compels
conveyance of title. If the term “promoter” were read narrowly,
these duties could easily be defeated by making transactions in
layers. The Legislature closed that door. Therefore, when
examining any dispute under the Act, the Court must look at the
substance of the arrangement and not merely the label adopted by
the parties. If a person has undertaken development, procured
sanctions, caused construction and sold flats, he answers the
description of promoter. If the owner has actively participated and
enabled the project, he too falls within that net. The definition
ensures that statutory obligations attach to all those who have a
effective role in bringing the building into existence and placing
flats in the hands of purchasers.
III. Wide Definition of Promoter under Section 2(c):
39. The starting point for understanding the scheme of the Act is
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the definition of the word “promoter” under Section 2(c). The
Legislature has consciously used broad language. It does not
restrict the expression to only the person who physically constructs
the building or only to the person whose name appears as owner
in the property records. Instead, the definition covers any person
who constructs or causes to be constructed a building of flats for
the purpose of selling them. This choice of words is deliberate and
has important consequences while deciding disputes under the Act.
The phrase “causes to be constructed” is significant. It shows that
the law is concerned with the real role played in bringing the
project into existence. In many projects, the owner of land does
not personally undertake construction. Construction may be
carried out through a developer, a partnership firm, or another
entity created only for development purposes. If the definition was
narrow, the landowner could simply say that he did not construct
and therefore he is not responsible. The Act prevents such
avoidance. If a person enables, authorises or sets in motion the
process of construction with the intention of selling flats, he comes
within the definition of promoter.
40. The definition also includes partnership firms, bodies or
associations of persons, whether registered or not. This again
shows that the Legislature intended to prevent technical
objections. Promoters often change business structures or operate
through informal arrangements. Flat purchasers cannot be
expected to trace internal arrangements or legal technicalities. The
law therefore attaches responsibility to the function performed
rather than the form adopted.
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41. Another important part of the definition is that where the
person who builds and the person who sells are different, both are
treated as promoters. This provision addresses a common practice
in real estate transactions. One party obtains approvals and
controls land. Another carries out construction. A third may
market and execute agreements with purchasers. If only one of
them were treated as promoter, the others could escape statutory
duties. The Act avoids this situation by treating all such persons as
promoters for the purposes of obligations under the statute. The
inclusion of assignees further strengthens this approach.
Development rights are often transferred during the life of a
project. Without this clause, a promoter could assign rights
midway and claim that obligations no longer bind him. Section
2(c) ensures that rights and obligations travel with the project.
Anyone stepping into the shoes of the original promoter also steps
into his statutory responsibilities.
42. The broad definition serves a clear purpose. The Act is a
welfare legislation meant for flat purchasers. Purchasers deal with
whoever appears to control the project. They pay money believing
that the law will ensure transfer of title and formation of society. If
responsibility could be avoided by splitting roles between owner,
developer and seller, the entire protection intended by the Act
would fail. Therefore, while applying Section 2(c), the Court must
look at the substance of the arrangement. The real test is who had
an effective role in bringing the building into existence and placing
flats in the market. If the landowner secures permissions, permits
construction and allows flats to be sold, he cannot later deny the
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status of promoter. Similarly, if a developer constructs and sells
flats though title stands elsewhere, he also falls within the
definition. The law does not permit either to avoid statutory
obligations by pointing to internal agreements between
themselves.
43. Thus, Section 2(c) creates a wide definition. It ensures that
every person who plays a role in development and sale remains
accountable under the Act. The definition must therefore be
interpreted in a manner that advances the object of the legislation
and protects flat purchasers from being left without an effective
remedy.
IV. Statutory Duties under Sections 3, 4, 7 and 10:
44. Section 3 sets out the general liabilities of the promoter.
Section 4 then places a strict condition before any money is
accepted. It provides that a promoter who intends to construct
flats to be taken on ownership basis shall, before accepting more
than twenty percent of the sale price as advance or deposit, enter
into a written agreement for sale with each purchaser. That
agreement must be registered under the Registration Act and must
be in the prescribed form. Sub-section (1A) of Section 4 specifies
what the agreement must contain. It must disclose the liability of
the promoter to construct the building as per sanctioned plans. It
must state the date of possession. It must specify the carpet area. It
must break up the price of the flat and the price attributable to
common areas. It must state the nature of the organization to be
formed, the description of common areas, and the percentage of
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undivided interest in those areas. In other words, the law insists on
full disclosure at the stage of sale.
45. Section 7 prohibits the promoter from altering sanctioned
plans without consent. Section 10 then moves the process forward
by imposing a duty on the promoter to take steps for formation of
a cooperative society or company as soon as the minimum number
of purchasers is reached. The formation of the society is not left to
the choice of the promoter. It is a statutory step. The promoter
must apply for registration within the prescribed time. If he fails,
the law empowers the competent authority to intervene and direct
registration upon application by flat purchasers. This provision
shows that the Act does not allow the promoter to indefinitely
retain control by delaying formation of the society. The law intends
that the purchasers must come together as a collective body
capable of holding title and managing the property.
V. Section 11. Core Obligation to Convey Title:
46. The heart of the Act lies in Section 11. That is the stage
where the project moves from construction and sale to actual
transfer of ownership. Until that point, the flat purchaser has only
an agreement. Section 11 ensures that the agreement matures into
real title.
47. Sub-section (1) says that the promoter shall take all
necessary steps to complete his title. This is important. The
promoter cannot say that his own title is imperfect and therefore
he is unable to convey. The law places the burden on him to
convey to the organization of flat purchasers his right, title and
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interest in the land and the building. The organization may be a
cooperative society, a company, or an association of apartment
owners. The form of organization may differ, but the duty remains
the same. The promoter must transfer what he owns.
48. The phrase “his right, title and interest” used in Section 11
signify the totality of ownership. They include every legal and
beneficial interest that a person holds in respect of immovable
property. When the Legislature employs such composite words, it
intends to leave no residue behind. The expression does not refer
merely to the constructed portion of the building. It is not confined
to the concrete structure raised above the ground. Nor is it
restricted to common areas like staircases, lifts or terraces. The
section expressly speaks of the land and the building. The land is
the foundation. The building stands on it. Both form one
integrated unit for purposes of ownership and enjoyment by flat
purchasers.
49. A promoter cannot transfer less than what he himself holds.
At the same time, he cannot retain any part of his own interest
once the stage for conveyance arrives. Therefore, the nature of the
society’s right depends directly on the nature of the promoter’s
title. If the promoter is a freehold owner of the land, then he has
complete ownership. That ownership includes the land itself, the
building standing on it, and all rights arising from it. In such a
case, when Section 11 require him to convey his right, title and
interest, the entire ownership must pass to the society. He cannot
say that he will keep ownership but give only a lease. The statute
does not permit such splitting of rights. Ownership once held by
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the promoter must move fully to the society formed by flat
purchasers.
50. On the other hand, there are situations where the promoter
is not the owner but only a lessee under a superior owner. In that
case, the promoter cannot transfer ownership because he never
had it. What the law requires is that he must assign the whole of
his leasehold interest to the society. He cannot retain a portion of
the lease for himself or continue as a superior lessee after flats are
sold. Whatever leasehold rights he possesses must pass in their
entirety.
51. The logic behind this is that the society steps into the shoes
of the promoter. It takes over exactly what the promoter had.
Nothing more and nothing less. If the promoter had ownership,
ownership goes to the society. If he had leasehold rights, the full
leasehold goes to the society. This principle also prevents misuse.
Promoters in the past often tried to retain some superior interest in
land even after selling all flats. They would continue to control
redevelopment or claim future benefits. The law avoids this
situation by insisting that the entire interest held by the promoter
must be transferred. Therefore, the inquiry is always factual. What
was the promoter’s real title at the time of conveyance. Once that
is identified, the transfer must match it completely. The promoter
cannot reduce his own estate before transferring it. Nor can he
hold back any part of it after society is formed.
52. Flat purchasers purchase flats with a proportionate
undivided interest in the land and common areas. Their right to
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use, manage and redevelop the property depends on control over
the underlying land. If the promoter retains ownership of the land,
the society’s autonomy becomes illusory. Decisions about repairs,
additional development or redevelopment would remain subject to
the promoter’s superior title. Therefore, the words “his right, title
and interest” must receive full meaning. They oblige the promoter
to divest himself of the entire estate that he holds in the land and
building. The statute leaves no room for partial retention. It
requires a clean transfer so that the society stands in the shoes of
the promoter as owner of the property, to the extent of the
promoter’s own interest. In this view, any attempt to split
ownership by conveying only the flats while retaining the land is
contrary to the plain language of the Act. The legislative command
is clear. Whatever interest the promoter holds in relation to the
land and building must vest in the society formed by the flat
purchasers.
53. The section further requires the promoter to execute all
relevant documents in accordance with the agreement executed
under Section 4. This ensures consistency between the statutory
agreement and the final conveyance. If the agreement fixes a
definite time for conveyance, that time governs. If it does not, the
statute and rules step in and prescribes the period of four months
within which conveyance must be executed. There is also a
requirement to deliver all title documents in the promoter’s
possession or power. Without original title documents, the society
cannot effectively manage or deal with the property. The
Legislature was conscious of the practical difficulties faced by
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societies where promoters retained documents even after
possession was given.
54. When these parts are read together, the scheme is clear. The
promoter constructs and sells. The purchasers form a society. The
promoter completes his title. He then transfers his entire interest in
the land and building to the society within the stipulated period
and hands over the title documents. That is the statutory sequence.
Section 11 therefore marks the point where control and ownership
of the property must pass from the promoter to the collective body
of flat purchasers. It ensures that the promoter does not remain
indefinitely in a dominant position over the property. It converts
contractual rights into real ownership. This provision must be
given full effect if the purpose of the Act is to be achieved.
VI. Rule 5 and Clause 13 of Form V:
55. Form V is the statutory model agreement which every
promoter must use while entering into an agreement for sale
under Section 4. Once the Rules prescribe a specific form, parties
cannot dilute or rewrite its essential obligations. The object behind
prescribing a uniform form is to ensure that flat purchasers across
the State receive minimum statutory protection. The promoter
does not have freedom to draft clauses in a manner that curtails
rights conferred by the Act. Clause 13 of Form V directly addresses
the issue of conveyance. It provides that, unless definite time is
otherwise agreed, the promoter shall within four months of
registration of the society or limited company cause to be
transferred to that body all the right, title and interest of the
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vendor, lessor, original owner or promoter in the land together
with the building. The transfer is to be effected by executing the
necessary conveyance or assignment of lease. The clause also
clarifies that such conveyance or assignment must be in keeping
with the terms and provisions of the agreement.
56. This clause carries weight for more than one reason. First, it
repeats the statutory expression “all the right, title and interest”.
The word “all” leaves no scope for partial transfer. It strengthens
what Section 11 already mandates. The promoter must divest
himself completely of whatever interest he holds. The clause does
not contemplate retention of reversionary rights, residual title, or
superior interest. Second, the clause recognizes that promoters
may not always hold identical types of title. In some cases, the
promoter may be absolute owner of the land. In other cases, he
may hold leasehold rights from a superior lessor. Clause 13 takes
care of both situations. If the promoter is owner, he must execute a
conveyance of ownership. If he is a lessee, he must execute an
assignment of his leasehold rights. The nature of the instrument
depends on the nature of his title. But the extent of transfer does
not vary. Whatever interest he has must pass in its entirety. The
clause therefore connects the statute and the contract. It ensures
that the agreement for sale incorporates the statutory duty of
transfer. It prevents promoters from later contending that only a
limited estate was promised. Even if the parties “otherwise agree”,
such agreement cannot override the Act. The Rules and the
prescribed form operate within the framework of the statute.
57. When one reads Section 11 of the Act, Rule 5 of the Rules,
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and Clause 13 of Form V together, the overall structure of the law
becomes clear. These provisions are form part of one continuous
scheme. Section 11 creates the obligation. Rule 5 ensures that the
agreement reflects that obligation in a prescribed form. Clause 13
of Form V incorporates the duty of transfer directly into the
contract between promoter and purchaser. The combined reading
leaves little scope for doubt. The promoter is not permitted to split
his interest and retain the more valuable portion while transferring
a reduced or inferior right to the society. The statute does not
allow him to remain the ultimate owner of the land while the
society becomes only a user or long term occupier. Such an
arrangement would defeat the purpose of collective ownership
which the Act seeks to secure for flat purchasers. It must be
remembered that flat purchasers do not enter into transactions
with the intention of becoming tenants under the very person who
developed and sold the property to them. They purchase flats on
ownership basis. The Act was enacted to protect this expectation.
If the promoter were allowed to retain ownership of the land and
grant only limited rights to the society, the balance of power would
remain permanently tilted in his favour. The Legislature clearly
did not intend to create a perpetual landlord-tenant relationship
between promoter and society, except in cases where the promoter
himself holds only leasehold rights from a superior owner. In such
a case, the promoter cannot transfer more than what he holds.
Even then, the obligation remains that he must assign his entire
leasehold interest. He cannot divide the leasehold and retain a
portion. The society must step into his shoes to the full extent of
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his interest. Once the society is formed, the promoter must exit
from ownership and transfer his full right, title and interest. That
is the legislative intent reflected consistently across the Act and the
Rules. Any interpretation which permits partial retention would
dilute the protection granted to flat purchasers and cannot be
accepted.
VII. Applicability of judgment in the case of Farhat Co operative
Housing Society:
58. The decision in Farhat Co operative Housing Society Ltd.
directly assists in resolving the controversy in the present case.
Farhat lays down a basic principle that the society is entitled to the
right, title and interest of the promoter or developer. It cannot
claim more than what the promoter holds. At the same time, it
must receive the entire interest that the promoter is entitled to
under law and under the project documents. In Farhat, the
developer held an Agreement to Lease from the owners. Therefore,
the society was held entitled to assignment of that leasehold
interest. The Court rejected the contention that the society would
be confined to a mere monthly tenancy. Applying that reasoning
here, the inquiry must focus on what interest the promoter holds
in the present matter. If the promoter holds freehold ownership,
the society must receive that ownership. If the promoter holds
leasehold rights, the society must receive the full leasehold
interest. The promoter cannot whittle down his own estate and
pass a lesser interest. Farhat considers the scheme explained in
Ramniklal Tulsidas Kotak v. Varsha Builders 1993 (1) Mh. L.J. 323 .
The promoter may be an absolute owner, a lessee, an agreement
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holder with enforceable rights, or an agent of the owner. In each
situation, the key requirement is that the promoter must have
sufficient entitlement to construct and sell flats on ownership
basis. Where he is not absolute owner, the owner must be made a
confirming party so that the flat purchasers are not left remediless.
The object of the Act is protection of purchasers and prevention of
malpractice.
59. In the present case, the record shows that the owner
obtained the IOD and Commencement Certificate and construction
proceeded accordingly. The Court there held that the owner who
caused the construction falls within Section 2(c). The owner could
not avoid the status of promoter merely because a family firm or
developer executed documents on its behalf. The Court looked at
substance over form. The same approach must govern here. If the
owner enabled and caused the construction and sale of flats, he
stands in the position of promoter. Once that is established,
Section 11(1) becomes operative. The promoter must convey his
right, title and interest in the land and building to the society.
60. Farhat makes an important clarification. The deemed
conveyance must be understood in the context of the rights the
promoter had. If the promoter’s right was to obtain a lease from
the owner, then the society would be entitled to that lease. If the
promoter had ownership, the society would be entitled to
ownership. The Court rejected the argument that the order was
vague. It held that the operative part must be read in light of the
promoter’s actual entitlement. In the present case, the petitioners
argue that only leasehold rights were contemplated under the
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allotment letters and development agreements. That argument
must be tested against the real nature of title. If the promoter or
owner holds freehold title, the society cannot be restricted to a
lesser estate merely because internal documents used the word
lease. If, however, the promoter genuinely holds only leasehold
rights from a superior owner, then the society would receive that
leasehold interest in its entirety. Farhat also highlights another
dimension. The Court took note of common interest between
owner and developer to frustrate conveyance. It emphasised that
the Act must be interpreted to prevent such attempts. In the
present matter, the resistance to conveyance, despite formation of
society and completion of construction, must be examined in the
same spirit. The Court cannot permit technical pleas to defeat
statutory rights.
VIII. Applicability of judgment in the case of Mr. Haresh Bhatia
and Others:
61. In Mr. Haresh Bhatia and Others, this Court examined the
entire scheme of MOFA in simple and practical terms. The
reasoning is important because it explains why Section 11 must be
given full effect. The Court explained that Section 11 cannot be
read narrowly. The expression “his right, title and interest in the
land and building” means the entire interest that the promoter
holds. If he is owner, he must convey ownership. If he is lessee, he
must assign the lease. He cannot retain ownership of land and give
only leasehold rights if he himself is owner. The Court also dealt
with the argument that conveyance must strictly follow the
agreement under Section 4. It was argued that if the agreement
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says only lease will be granted, the authority cannot grant
ownership. This argument was rejected. The Court held that the
words “in accordance with the agreement executed under Section
4” cannot be read in isolation. They must be harmonised with the
mandate to convey “his right, title and interest in the land and
building.” Otherwise, promoters would simply draft agreements
saying land will never be conveyed, and defeat Section 11 entirely.
62. The consistent view has been that an owner who secures
permissions and sets the project in motion cannot later distance
himself from the obligations imposed on a promoter. The law will
not permit him to say that the developer alone must bear the
statutory burden while he continues to enjoy the benefit of
ownership. Once a person falls within the definition of promoter,
the duties under Section 11(1) follow as a matter of course. That
section does not differentiate between categories of promoters. It
mandates that the promoter must complete his title and convey his
right, title and interest in the land and building to the society. The
obligation is attached to the role, not to the label. It is therefore
not open to the parties to rely upon internal arrangements
between owner, allottee and developer to defeat the statutory
mandate. They may agree among themselves about sharing of
profits, development rights or management. But such private
arrangements cannot dilute the rights of flat purchasers or the
statutory duty to convey. The Act was enacted precisely to prevent
such shifting of responsibility. In short, the Court must look
beyond nomenclature and examine the real nature of the
transaction. If the owner has enabled and caused construction and
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sale of flats, he stands in the position of promoter. He cannot avoid
the obligation to convey by pointing to agreements executed
behind the back of the purchasers. The statutory duty under
Section 11(1) attaches to him notwithstanding the internal
structure of the development arrangement.
63. Therefore, the ratio of Farhat Co operative Housing Society
Ltd. and Mr. Haresh Bhatia and Others support the following
conclusions in the present case: The society is entitled to the entire
right, title and interest held by the promoter. The promoter
includes the person who caused construction, even if development
was routed through another entity. Deemed conveyance must
reflect the real nature of the promoter’s entitlement. Internal
arrangements between owner and developer cannot defeat the
statutory mandate under Section 11. If, on facts, the promoter here
holds ownership in the land, then the society must receive that
ownership. If the promoter holds leasehold rights, then the society
must receive full assignment of those rights. What cannot be
accepted is a position where the promoter retains the superior
interest and transfers only a fragment to the society. Both
judgments clearly rejects such a dilution of statutory protection.
Thus, when applied to the present facts, the reasoning in Farhat
and Mr. Haresh Bhatia strengthen the conclusion that the
impugned order granting deemed conveyance, to the extent of the
promoter’s entire interest, is in consonance with the statutory
scheme and does not suffer from legal infirmity.
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IX. Petitioners’ Case Based on Lease Structure:
64. The main submission of the petitioner is that from the very
beginning the transaction contemplated only grant of leasehold
rights and never transfer of ownership in the land. This argument
is founded on the Letter of Allotment, the Development Agreement
and the flat purchase agreements. Clause 7 of the Letter of
Allotment states that the society would execute a lease in favour of
the allottees or their nominees, including a cooperative housing
society to be formed by flat purchasers. It further provides that the
transfer of shares and rights would be subject to payment of
consideration and completion of construction. On a plain reading,
this clause shows that the original understanding between the
allotting society and the allottees was that a lease would be
granted. Based on this clause, it is argued that the nature of rights
in the plot was always leasehold and therefore the society of flat
purchasers cannot now seek conveyance of ownership. The
Development Agreement dated 28 April 1980 is then relied upon.
Recital (iii) records that the vendors had agreed to construct the
building and sell flats on ownership basis, subject to the Letter of
Allotment and the subsequent deed of lease to be executed by the
society. Clause 11 speaks about obtaining permission for lease.
Clause 12 refers to making out marketable title for leasing the plot
to the cooperative society to be formed. Clause 17 contemplates
execution of an indenture of lease for a term of nine years with
option of renewal. Clause 25 permits assignment of development
rights subject to the Letter of Allotment. From these clauses, the
petitioner submits that the entire structure of the transaction is
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lease based. It is further pointed out that when the petitioner
constructed the building and entered into agreements with flat
purchasers, those agreements also referred to lease. Clause 10 of
the flat agreement states that the plot shall be obtained on lease
and that the word “conveyance” shall mean the lease to be
executed in favour of the society. Clause 34 provides that after sale
of all flats and formation of society, the sellers shall procure an
indenture of lease of the land in favour of the society. Thus,
according to the petitioner, every document in the chain
consistently speaks of lease and not sale. Therefore, it is contended
that the competent authority could not have directed conveyance
of ownership and could at best direct execution or assignment of
lease.
65. This submission must be examined in light of the statutory
scheme already discussed. The Letter of Allotment and
Development Agreement are inter se documents between the
owner society, the allottees and the developer. They regulate
internal rights. They do not override the mandate of Section 11 of
MOFA. If the promoter is owner of the land, he cannot by private
arrangement convert his ownership into a limited lease merely to
avoid statutory transfer. The use of the word “lease” in the
documents is not decisive by itself. The real question is what title
the promoter actually held. If the promoter was only a lessee from
a superior owner, then obviously the society can receive only
assignment of that leasehold interest. But if the promoter was
absolute owner of the land, then a clause stating that only lease
will be granted cannot defeat Section 11. The flat purchase
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agreements repeatedly state that flats are sold on “ownership
basis.” A flat sold on ownership basis necessarily carries
proportionate interest in the land. The law does not recognise
ownership of a flat floating in air without interest in the
underlying land. Construction is possible only because of FSI
generated from the land. Therefore, sale of flats on ownership
basis necessarily dilutes the promoter’s title in the land. The
clause in the flat agreement which says that “conveyance” shall
mean lease cannot be read to defeat the Act. If such clauses are
accepted as final, every promoter would simply draft the
agreement in that manner and permanently retain ownership of
the land. That is precisely the mischief Section 11 was enacted to
cure. Clause 34 itself shows that after sale of all flats and
formation of society, the seller must procure execution of lease of
land and building in favour of the society. This indicates that once
the project is complete and all dues are paid, the land and building
must vest in the collective body of purchasers. The only dispute is
about the nature of estate. That issue depends on what the
promoter actually owned. Therefore, the petitioner’s reliance on
these clauses cannot by itself conclude the issue. If the promoter’s
title in the land was leasehold, the society will receive that
leasehold interest in full. If the promoter was owner, the society is
entitled to ownership. The documents cannot be read in isolation
from Section 11. The contractual clauses relied upon by the
petitioner may show the understanding between the parties at the
time of development. However, they cannot dilute the statutory
obligation to convey the entire right, title and interest held by the
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promoter. The ultimate entitlement of the society must be
determined by the nature of title held by the promoter and the
mandate of Section 11, not merely by the language chosen in
private agreements.
X. Consent Terms and Reliance on Other Cases:
66. The petitioners argue that the competent authority wrongly
relied upon the consent terms entered in Suit Nos. 1648 and 1649
of 1979. According to them, those consent terms only resulted in
Ratan CHS stepping into the position of the original owners.
Therefore, the petitioners contend that the legal character of the
property did not change. They submit that the original allottees
and the developers claiming through them continued only as
lessees or tenants under Ratan CHS. Based on this, the petitioners
say that there was always a clear covenant that only lease rights
would be granted. Since the parties had agreed to such an
arrangement, the society formed by flat purchasers cannot now
claim ownership or conveyance beyond leasehold rights. Their
submission is that the society is bound by the same chain of
documents and cannot seek a better title than what the allottees
and developers possessed. The petitioners further rely on another
matter concerning Mahavir CHS arising from the same larger
property. In that case, the authority granted only assignment of
lease and not conveyance of ownership. That order, according to
the petitioners, was upheld by this Court in Writ Petition No. 6167
of 2022. They therefore argue that consistency requires a similar
outcome in the present case.
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67. These submissions require careful examination. It is correct
that consent terms in earlier litigation may determine who stepped
into the shoes of the original owner. However, stepping into the
shoes of the owner means stepping into the rights and obligations
attached to that ownership. If Ratan CHS became owner or
acquired ownership rights through the consent terms, then it also
inherited the statutory obligations under MOFA once flats were
sold and a society was formed. The consent terms cannot be read
only to preserve rights while ignoring statutory duties. The
argument that allottees and developers continued only as lessees
depends entirely on the nature of title actually held. Merely
describing parties as lessees or tenants in documents does not
automatically conclude the issue. The Court must examine
whether the promoter or owner in reality held freehold title or
only leasehold rights. If the promoter had ownership, Section 11
requires transfer of that ownership. If the promoter had only
leasehold rights, then assignment of lease would follow. The
statute controls the outcome, not labels used in private
arrangements.
XI. Relevance of the order in the Mahavir CHS case:
68. The petitioners have placed strong reliance on the order
passed in the matter concerning Mahavir CHS. According to them,
since the authority in that case granted only assignment of lease
and not conveyance of ownership, a similar result must necessarily
follow in the present matter. This submission, though attractive at
first glance, cannot be accepted without a closer examination of
the legal position.
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69. Every proceeding for deemed conveyance under Section 11
of MOFA is fact specific. The competent authority examines the
nature of title held by the promoter, the documents executed
between parties, the approvals obtained, and the actual legal
interest available for transfer. Therefore, an order passed in
another case cannot be treated as laying down a universal rule
unless the factual foundation is shown to be identical in all
material respects. It is also necessary to remember that deemed
conveyance orders do not create general precedents in the way a
statutory interpretation judgment may do. They are based on
examination of individual title documents. One plot within a larger
layout may be held on different terms than another. Development
agreements may vary. Conditions imposed by authorities may
differ. Even the chain of title may not be identical. Therefore,
similarity of location or common history of land does not by itself
justify applying the same result mechanically.
70. The statutory test under Section 11 remains constant. The
society is entitled to receive the entire right, title and interest held
by the promoter. Once that principle is applied, outcomes may
differ from case to case because the promoter’s interest itself may
differ. In one case it may be leasehold. In another, it may be
ownership. The law does not insist on uniform results. It insists on
correct transfer of the promoter’s actual estate.
71. The petitioners also rely on consent terms and earlier
arrangements to argue that the society is permanently confined to
leasehold rights. This argument overlooks the nature of statutory
rights under MOFA. Consent terms may explain how title moved
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from one party to another. They may provide background to the
transaction. But they cannot override the statutory mandate that
the promoter must convey his full interest to the society. Private
arrangements cannot dilute rights created by legislation enacted
for protection of flat purchasers.
72. Likewise, the fact that another writ petition concerning
Mahavir CHS resulted in upholding assignment of lease cannot
decide the present dispute. The Court cannot substitute factual
analysis with analogy. Before applying any earlier order, the Court
must ask a simple question. What interest does the promoter
presently hold in the land and building. Once that question is
answered, Section 11 itself dictates the result. If the promoter
holds ownership, ownership must pass. If the promoter holds
leasehold rights, full leasehold must pass. No further comparison
with another case is necessary.
73. In this view of the matter, the reliance placed on the Mahavir
CHS order does not advance the petitioners’ case. That decision
was based on its own factual matrix. It cannot be treated as
creating a binding rule that all plots in the larger property must
result in leasehold assignment. The present matter must be
decided on its own title position and in accordance with the
statutory mandate. Once the promoter’s real interest is identified,
the society becomes entitled to receive the whole of that interest
and nothing less.
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XII. Respondent Society’s Submissions and Effect of Municipal
Conditions:
74. The petitioners have tried to present the entire transaction as
one which was always intended to remain lease based. According
to them, the allotment letters, development agreements and flat
purchase documents show that only leasehold rights were
contemplated and therefore the society cannot seek ownership.
The issue cannot be decided merely by reading clauses that refer to
a future lease. The Court must examine whether such a lease ever
came into legal existence and whether the surrounding statutory
and municipal framework actually permitted it at the relevant
time.
75. It is established that Respondent No. 3, Ratan Co operative
Housing Society Limited, is the owner of the plot. The Municipal
Corporation of Greater Mumbai granted permission for
development on 26 February 1980. That permission was not
unconditional. The land was under Public Housing reservation,
and therefore the Corporation imposed specific restrictions.
Condition (f), which assumes importance in the present case,
prohibited leasing or resale of plots for a period of ten years. If
leasing itself was prohibited by the municipal authority for ten
years, then the petitioners’ contention that leasehold rights were
intended from the very beginning becomes legally doubtful. A
transaction cannot be presumed to have created leasehold rights
when the regulatory framework itself prevented execution of a
lease. The allotment in favour of Mr. Pravin Shah and Ms. Vanila
Shah therefore could not amount to a registered lease in law. It
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was only an allotment arrangement. The distinction is significant.
An allotment may indicate intention or future expectation, but it
does not by itself create a legal leasehold estate unless a formal
lease deed is executed in accordance with law. The material on
record shows that even after expiry of the period, no registered
lease was actually executed by Respondent No. 3 in favour of the
allottees or the developer. The petitioners repeatedly rely upon
clauses which speak of a lease to be granted in future. But those
clauses remain only contractual expressions of intention. In
property law, an intention to grant a lease in future does not create
present leasehold rights. Rights in immovable property arise only
when a proper instrument is executed and registered. The absence
of such an instrument means that the proposed leasehold structure
never matured into a legally enforceable estate.
76. Once this factual position is accepted, the entire argument
that the society is confined to leasehold rights loses its basis. The
Court cannot proceed on hypothetical arrangements that were
contemplated but never completed. The chain of title must be
examined as it actually exists, not as it was planned to exist. The
promoter or developer cannot rely on an unexecuted proposal to
restrict the statutory entitlement of the society.
77. Further, the respondent society rightly points out that
Respondent No. 3 continued to hold ownership and that
construction proceeded with permissions obtained in its name.
Under Section 2(c) of MOFA, the definition of promoter includes
not only the person who physically constructs but also the person
who causes construction to be undertaken. Therefore, when the
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owner secures permissions, enables development and allows
construction to proceed through a developer, the owner falls
within the statutory definition of promoter. The law looks at the
substance of the arrangement and not merely the labels used in
agreements.
78. Once Respondent No. 3 is seen as a promoter within the
meaning of Section 2(c), the statutory consequence follows
automatically. Section 11 casts an obligation on the promoter to
convey his right, title and interest in the land and building to the
society formed by flat purchasers. The duty is statutory and cannot
be avoided by pointing to incomplete or proposed arrangements
for lease.
79. In this background, the respondent society’s submission
shows the weakness in the petitioners’ case. Their argument
proceeds on the assumption that a leasehold structure existed. The
record shows otherwise. The municipal condition initially
prohibited leasing. No registered lease was ever executed
thereafter. What remains is ownership with the promoter who
caused construction. Therefore, the statutory obligation under
Section 11 to convey that ownership to the society stands
attracted. The society cannot be denied its statutory right on the
basis of a lease that never came into existence in law.
XII. Final Findings and Conclusion:
80. The petitioners’ reliance on earlier consent terms and
allotment letters cannot override this statutory obligation. Internal
arrangements cannot nullify the mandate of Section 11. The Act
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does not permit the promoter to retain ownership merely because
earlier documents contemplated a lease that was never actually
executed. It is also relevant that the Public Housing reservation
condition shows that the transaction structure was influenced by
regulatory restrictions. The absence of a lease is not accidental. It
flowed from the prohibition imposed by the municipal authority.
Therefore, the petitioners cannot now rely on a contemplated lease
to deny the society its statutory right. In these circumstances, the
respondent society’s submission carries weight. The land continues
to be owned by Respondent No. 3. No lease has been executed.
Construction has been completed. Flats have been sold. Society has
been formed. The statutory stage for conveyance has arrived.
81. Therefore, the contention of the petitioners that the society is
entitled only to leasehold rights cannot be accepted. The factual
and legal position shows that there is no subsisting lease to assign.
What exists is ownership in the hands of the promoter. Under
Section 11, that ownership must be conveyed to the society. The
claim of the petitioners to restrict the society to a lesser estate is
therefore unsustainable.
82. In view of the discussion above, this Court is satisfied that
the objections raised by the petitioners are without merit. The
statutory scheme under Section 11 of the Maharashtra Ownership
Flats Act, read with the Rules and Form V agreement, makes it
clear that the promoter is bound to convey to the society the entire
right, title and interest held by him in the land and building. The
documentary reliance placed by the petitioners on allotment
letters, development agreements and flat purchase agreements
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cannot override this statutory mandate. The factual position shows
that no executed lease ever came into existence and the land
continues to vest in the owner who caused the construction and
therefore answers the description of promoter under Section 2(c).
The competent authority has correctly exercised jurisdiction in
directing conveyance in favour of the respondent society. No
jurisdictional error, perversity or manifest illegality is
demonstrated warranting interference in writ jurisdiction. The
petitions, therefore, deserve to be dismissed. Hence, following
order is passed:
OPERATIVE ORDER
(i) The writ petitions stand dismissed.
(ii) The impugned order passed by the competent authority
granting unilateral deemed conveyance in favour of the
respondent society is upheld.
(iii) The competent authority and the concerned registering
authority shall proceed to give effect to the impugned order
and complete all consequential steps in accordance with law.
(iv) It is clarified that the observations made herein are for
the purpose of adjudication of the present writ petitions and
shall not preclude any party from pursuing appropriate
remedies before the competent civil court in accordance with
law.
(v) Rule stands discharged. No order as to costs.
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(vi) All pending interlocutory application(s) stand disposed
of in terms of this order.
(AMIT BORKAR, J.)
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