Neeta Sawant WP 6063 of 2026

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 6063 OF 2026

1. Nahar Builders Ltd. (formerly known

as M/s. Nahar Enterprises)

2. Jitendra Amritlal Sheth (Karta and

Manager of Jt. Hindu Family)

3. Narendra Amritlal Sheth

4. Jatin Manubhai Sheth

5. Shantaben Manubhai Sheth

6. Leena Jitendra Sheth

7. Purna Jatin Sheth

8. Samir Jitendra Sheth

9. Rama Narendra Sheth

10. Amar Jatin Sheth

11. Rishabh Jatin Sheth

(Petitioner Nos. 2 to 11, members of

the Joint Hindu Family of Late Amritlal

Dalpatbhai Sheth viz. A.D. Sheth HUF)

12. Jatin Manubhai Sheth (Karta and

Manager of Jt. Hindu Family)

13. Purna Jatin Sheth

14. Amar Jatin Sheth

15. Rishabh Jatin Sheth

16. Shantaben Manubhai Sheth

(Petitioner Nos. 12 to 16, members of

the Joint Hindu Family of Late

Manubhai A. Sheth viz. M.A. Sheth

HUF)

17. Narendra Amritlal Sheth (Karta and

Manager of Jt. Hindu Family)

18. Rama Narendra Sheth

...Petitioners

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Neeta Sawant WP 6063 of 2026

(Petitioner Nos. 17 and 18, members of

Joint Hindu Family of N.A. Sheth HUF)

19. Jitendra Amritlal Sheth (Karta and

Manager of Jt. Hindu Family)

20. Leena Jitendra Sheth

21. Samir Jitendra Sheth

(Petitioner Nos. 19 to 21, members of

Joint Hindu Family of J. A. Sheth HUF)

22. Shantaben Manubhai Sheth

23. Leena Jitendra Sheth

24. Rama Narendra Sheth

(Petitioner Nos. 22 to 24, members of

Joint Hindu Family of J.A. Sheth HUF)

V/s.

1. Orchid Enclave Co-operative

Housing Society Ltd.

2. The Competent Authority, District

Deputy Registrar, Co-op Societies,

Mumbai-2

3. Of�ce of the Joint Sub Registrar of

Assurances (Class-II), Mumbai

...Respondents

Mr. Atul Damle, Senior Advocate with Mr. Ankit Lohia, Mr. Filji

Frederick and Mr. Pranav Pradhan i/b. FF & Associates for the Petitioners.

Mr. Mayur Khandeparkar with Mr. Amrut Joshi, Mr. Nikhil Adkine, Mr.

Tatsat Gor, Mr. Satchit Gor and Mr. Amit Chavan i/b. Mr. Kapil Gor, for

Respondent No.1.

Mr. A.C. Bhadang, AGP for State.

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Neeta Sawant WP 6063 of 2026

CORAM : SANDEEP V. MARNE, J.

JUDGMENT RESD. ON : 21 JULY 2026.

JUDGMENT PRON. ON : 28 JULY 2026.

JUDGMENT:

1) This is a challenge to the order of deemed conveyance of land

and building in favour of a housing society at the instance of a developer,

who intends to retain control over portion of the conveyed land on which

common amenities like club house, swimming pool etc. are set up for use

by the residents of the building. Petitioner contends that application for

deemed conveyance could not have been entertained and decided in the

light of parties entering into consent terms resulting in a consent decree.

According to Petitioner, the consent decree provides for lease of portion

of conveyed land in their favour and that therefore the order of deemed

conveyance which does not provide for a lease in their favour is bad in

law.

THE CHALLENGE

2) By this Petition �led by the Petitioner-developers, order

dated 31 July 2025 passed by the District Deputy Registrar, Co-operative

Societies (2), East Suburban, Mumbai and Competent Authorit y

(Competent Authority) is challenged, by which land admeasuring

13,578.293 sq.m. alongwith the building is conveyed in favour of

Respondent No.1-Society.

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Neeta Sawant WP 6063 of 2026

3) Petitioners have acquired development rights in respect of

large portion of land admeasuring 28,494.60 sq.m. situated at Sector R-3

and CTS Nos. 53/C, 53/A-1, 53A-1/A, 53-A1/D and 53A-1/C of Village-

Chandivali, Taluka-Kurla, Mumbai Suburban District. Petitioners have

constructed a building on the larger portion of land and �at purchasers

have formed society known as Orchid Enclave Co-operative Housing

Society Limited (Respondent No.1). Respondent No.1-Society had �led

L.C. Suit No. 901 of 2007 in the City Civil Court at Bombay against the

Petitioners and owners of land seeking conveyance of land and building.

The Suit also sought to restrain the Petitioner No. 1 from constructing

building ‘Blue Bell’ on the plot. The suit was compromised and consent

terms were executed between the Petitioner No. 1 and Respondent No.1-

Society. The suit was decreed in terms of the consent terms by the City

Civil Court on 25 September 2013. Under the consent terms, Petitioners

agreed to execute conveyance in respect of land admeasuring 13,629.84

sq.m. in favour of Respondent No.1. Respondent No.1 agreed to give up

claim in respect of land admeasuring 2662.98 sq.m. and agreed not to

object to construction of the building Blue Bell thereat. Under the consent

terms, Respondent No.1-Society further agreed to execute lease for a

period of 99 years in favour of M/s. Nahar Buildings and Developers Ltd.

in respect of land admeasuring 3546.31 sq.m.

4) According to the Petitioner, Respondent No.1-Society failed

to come forward for execution of conveyance deed and lease deed.

Instead, Respondent No.1 �led Application No.52 of 2025 seeking deemed

conveyance of land and building under Section 11(3) of Maharashtra

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Neeta Sawant WP 6063 of 2026

Ownership Flats (Regulation of the promotion of construction, sale,

management and transfer) Act, 1963 (MOFA). According to the

Petitioner, Respondent No.1 suppressed the factum of execution of

consent terms and passing of consent decree dated 25 September 2013.

Application No. 52 of 2025 was resisted by the Petitioner by �ling reply.

Rosa Alba Cooperative Housing Society Ltd. (Rosa Alba Society) �led

intervention application before the Competent Authority opposing

conveyance of any portion of land on which its building is located. By

order dated 31 July 2025, the Competent Authority has issued certi�cate

of unilateral deemed conveyance in respect of land admeas uring

13578.293 sq.m. alongwith the building situated thereon in favour of

Respondent No.1-Society. Petitioners are aggrieved by the order of the

Competent Authority dated 31 July 2025 and have �led the present

Petition.

SUBMISSIONS

5) Mr. Damle, the learned Senior Advocate appearing for the

Petitioner submits that the Competent Authority has erred in exercising

jurisdiction under Section 11(3) of MOFA by entertaining Application

No.52 of 2025. That Respondent No.1-Society has already secured

conveyance in respect of land admeasuring 13,629.84 sq.m. under the

consent decree dated 25 September 2013. That once Civil Court

determines entitlement of conveyance, it is not open for the Competent

Authority to exercise jurisdiction under Section 11(3) of MOFA. That

jurisdiction under Section 11(3) can be exercised by the Competent

Authority only where there is failure on the part of the promoters within

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the meaning of Section 11(3). That in the present case, far from there

being any failure on the part of the Petitioners, there is a consent decree

in favour of Respondent No.1 envisaging conveyance of the land. That the

real remedy for Respondent No.1 was to seek execution of consent decree

dated 25 September 2013 if it believed that Petitioners did not execute

the conveyance deed in pursuance of the consent decree. That therefore,

proceedings for conveyance cannot be initiated merely because the order

passed in the previous proceedings is not implemented. That the

Application No. 52 of 2025 was clearly hit by the principles of res judicata.

6) Mr. Damle submits that the issue involved in the Petition is

squarely covered by the judgment of this Court in Nahar Seth & Jogani

Developers Pvt. Ltd. vs. Deputy Registrar, Co-operative Societies &

Competent Authority and Anr

1

. He submits that Respondent No.1-

Society is deliberately not seeking execution of consent terms dated 25

September 2013 with a view to wriggle out of commitment to execute

lease in respect of land admeasuring 3546.31 sq.m. That under the

consent decree, Respondent No.1-Society is not supposed to possess

entire land admeasuring 13629.84 sq.m. and portion of that land

admeasuring 3546.31 sq.m. was required to be leased out to the

Petitioners. On the other hand, the impugned order of conveyance has

the effect of conveying entire land admeasuring 13,578.293 sq.m. without

any obligation to execute lease of land admeasuring 3546.31 sq.m. in

favour of the Petitioners. He relies on judgment of the Apex Court in

Ajanta LLP vs. Casio Keisanki Kabushiki Kaisha D/B/A Casio Computer

1

2024 SCC OnLine Bom 1662

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Company Limited and Anr.

2

in support of his contention that a

compromise decree creates an estoppel by judgment and would operate as

a res judicata for subsequent proceedings involving same cause of action.

He also relies on judgment of this Court in Sanu Enterprises vs. Vikhroli

Laxmi Apartments Coop. Housing Society Limited

3

in support of his

contention of res judicata. He also relies on judgment of the Apex Court in

S. Malla Reddy vs. Future Builders Cooperative Housing Society and

Ors.

4

in support of his contention that subsequent proceedings for same

relief are not maintainable. He also relies on judgment of this Court in

Sanu Enterprises Vs. Vikhroli Laxmi Apartments Housing Society Ltd.

5

7) He prays for setting aside the impugned order dated 31 July

2025.

8) Mr. Khandeparkar, the learned counsel appearing for

Respondent No.1-Society opposes the Petition. He submits that the order

of the Competent Authority results in proportionate subdivision of land

in accordance with GR dated 22 June 2018. That the Society has received

conveyance of lesser land admeasuring 13,578.293 sq.m. as compared to

the land indicated in the consent terms of 13,629.84 sq.m. He submits

that mere execution of consent terms does not prevent Competent

Authority from exercising jurisdiction under Section 11(3) of MOFA. He

relies on provisions of Section 16 of MOFA in support of his contention

that the provisions of Section 11(3) have overriding effect on contract

2

(2022) 5 SCC 449

3

Writ Petition No.491 of 2022 decided on 24 February 2026.

4

2013 SCC OnLine SC 366

5

Writ Petition No. 491 of 2022 decided on 24 February 2026

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containing contrary stipulations. That consent terms are nothing but

agreement between the parties and that consent decree is again an

agreement with imprimatur of the Court. That therefore mere covenants

of the consent terms cannot come in the way of Competent Authority

exercising jurisdiction under Section 11(3) of MOFA. That in the present

case, there is failure on the part of the Petitioners in executing the

conveyance as conveyance was actually not executed despite passage of

period of 12 long years from the date of execution of the consent terms.

That since Respondent No.1-Society has a remedy under Section 11(3) of

MOFA, it was not necessary to take the route of seeking execution of

consent decree. He submits that even otherwise, the consent terms

provide for performance of obligations in sequence. That under the

consent terms, it was the responsibility of the Petitioners to �rst convey

land admeasuring 13629.84 sq.m. The second obligation in sequence was

to effect registration of the conveyance. The third obligation was to effect

repairs to the building. The last obligation for Respondent No.1-Society

to execute lease deed was to kick in only after the �rst three obligations of

the Petitioners are discharged. That therefore, time for execution of lease

in favour of the Petitioners by Respondent No.1-Society has not arrived.

As of now, the order of the Competent Authority merely results in

ful�llment of the �rst obligation of the Petitioner to convey land in favour

of Respondent No.1-Society. That therefore, passing of impugned order

by the Competent Authority does not contravene the consent decree in

any manner. That since there is no con�ict between the order of the

Competent Authority and the consent terms, there is no warrant for

interference in the impugned order.

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9) Mr. Khandeparkar further submits that the principle of res

judicata has no application in the facts and circumstances of present case.

That the decree dated 25 September 2013 is not the outcome of any

adjudication made by the City Civil Court. That parties merely agreed on

particular arrangement which is converted into consent decree. In such

circumstances, there is no question of application of principles of res

judicata. He relies on judgment of this Court in Paramanand Builders

LLP vs. Competent Authority & District Deputy Registrar, Cooperative

Societies and Ors.

6

in support of his contention that consent terms

cannot override the statutory obligations under Section 11 of MOFA. He

relies on judgment of this Court in Prestige Garden A-1 CHSL vs. State of

Maharashtra

7

in support of his contention that the principle of estoppel

does not apply. He also relies on judgment of this Court in Nahalchand

Laloochand Private Limited and Ors. vs. Shri Panchamrut CHSL and

Ors.

8

in support of his contention of broad contours of enquiry under

Section 11 of MOFA. He submits that in a summary enquiry conducted

under Section 11, the Competent Authority has not caused any violence

to the consent decree. He accordingly prays for dismissal of the Petition.

REASONS AND ANALYSIS

10) The case involves a unique conundrum. Petitioner-

developers completed construction of 5 buildings of Respondent No. 1

Society and desired construction of an additional building in the layout.

In a composite Suit �led by the Respondent No.1-Society to stop the

6

2026 SCC OnLine Bom 1522

7

2024 SCC OnLine Bom 5625

8

2025 SCC OnLine Bom 341

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Petitioner No. 1 from constructing an additional building in the layout

and for seeking conveyance of the entire layout land, a compromise took

place. Under the compromise, the Society decided to give up its challenge

against construction of additional building upon acceptance of some

consideration and against a promise to carry out repairs and painting

works in its buildings. Under the compromise, the Petitioner-developer

agreed to convey the proportionate land to the Society (leaving aside the

land meant for construction of additional building), but upon a condition

that it would retain the land and structure forming part of common

amenities and accordingly extracted a promise from the Respondent No. 1

Society to lease back 26% of the conveyed land almost free of costs.

11) After striking a deal with the Society leading to a consent

decree, the Petitioners faltered on its undertaking to convey land in

favour of the Society for 12 long years. In the meantime, they took

advantage of the Consent Terms by completing construction of the

additional building, sold �ats therein and earned pro�ts. After waiting for

12 long years, the Society approached the Competent Authority seeking

conveyance of land. By allowing the Application �led by the Society, the

Competent Authority has conveyed slightly lesser land than the one

agreed under the Consent Terms. Petitioners have challenged the Order

of the Competent Authority because it does not grant to them lease of the

land on which common amenities of the Society are situated.

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CONVEYANCE OF LAND BY THE COMPETENT AUTHORITY

12) By the impugned order and certi�cate dated 31 July 2025, the

Competent Authority has granted conveyance of land admeasu ring

13,578.293 sq.m. in favour of Respondent No.1-Society. The Competent

Authority has relied upon sanctioned plan dated 31 May 2005, on the

basis of which buildings of Respondent No.1-Society are constructed. It

appears that the construction was undertaken in respect of plot

admeasuring 16,292.82 sq.m. After deducting 15% area reserved for

Recreation Ground (RG), the balance area of land available was 13,848.9

sq.m. It appears that the Municipal Corporation sanctioned total built-up

area (BUA) of 18,313.13 sq.m. out of which BUA of 15,262.28 sq.m. is

utilised in construction of buildings of the Respondent No.1-Society. The

Competent Authority has accordingly determined the proportionate share

of Respondent No.1-Society in the land as 83.34%. The Competent

Authority has thereafter divided both the net plot area of 13,848.90 sq.m.

and RG area of 2443.92 sq.m. by taking into consideration share of

Respondent No.1-Society of 83.34%. Accordingly, the land entitlement of

Respondent No.1-Society is determined as under:

(i) 83.34% of net plot area of 13,848.90 sq.m. 11541.673 sq.m.

(ii) 83.34% of RG land of 2443.92 sq.m. 2036.762 sq.m.

TOTAL 13,578.293 sq.m.

13) It appears that Rosa Alba Society had �led Intervention

Application before the Competent Authority and had expressed an

apprehension that the Respondent No. 1 Society was seeking conveyance

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of land admeasuring 2662.98 sq.m. excluded for its building under the

Consent Terms. The Competent Authority has considered the objection of

Rosa Alba Society and has undertaken the exercise of land division

proportionate to the BUA used for buildings of the two societies. After

conveying 83.34% land admeasuring (11541.673 + 2036.762) 13578.293

sq.m. to Respondent No. 1 Society, the balance 16.66% land admeasuring

2714.527 sq.m. in the layout is left for Rosa Alba Society.

14) This is how the Competent Authority has determined the

share of Respondent No.1-Society and of Rosa Alba Society in the land

(net plot area as well as RG) proportionate to the BUA utilised in

construction of their respective buildings in the layout. What is done by

the Competent Authority is in accordance with the procedure prescribed

in the Government Resolution dated 22 June 2018, which provides for

land division in the layout proportionate to BUA utilised in construction

of each building. Relevant part of the GR provides thus:

If there are many buildings on one plot and have a separate co-operative society

of each building and if construction of some of them is incomplete then while

making Deemed Conveyance of completed building, undivided s hare of

occupancy right in the proportion of construction on the proportionate area of

the construction of the building of such society or ground coverage or plinth

area, similarly open space, common services and facilities, roads should be

given.

15) This Court has repeatedly upheld the principle of land

division proportionate to the BUA utilized in construction of each

building while granting conveyance to a society whose building is located

in the layout development and where all societies do not come together

for seeking conveyance of the whole land in the layout.

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16) Ordinarily therefore, what is done by the Competent

Authority is in accordance with law. This is the reason why Petitioners

have not seriously disputed the computations made by the Competent

Authority. In the present petition, Petitioners do not contend that

Respondent No.1-Society is not entitled to conveyance of la nd

admeasuring 13,578.293 sq.m. However, the certi�cate of deemed

conveyance is challenged only on the ground that there has been a

consent decree passed in the suit �led by Respondent No.1-Society and

that therefore, the Competent Authority could not have entertained

application of Respondent No.1 for deemed conveyance. In short, what is

questioned by the Petitioners is the jurisdiction of the Competent

Authority to entertain the application �led under Section 11(3) of the

MOFA for unilateral deemed conveyance when there is already a decree of

Civil Court for conveyance of land in favour of Respondent No.1-Society.

PROVISIONS OF MOFA

17) The provision for unilateral deemed conveyance has been

introduced by the Legislature by amending Section 11 of MOFA after

noticing a trend where the developers/landowners were deliberately

avoiding conveyance of land and building in favour of organisation of �at

purchasers. Such avoidance on the part of developers was with the

objective of utilising future development potential in the land by putting

additional construction on the basis of additional FSI sanctioned due to

the change in the FSI regime. It was felt that the provisions of unamended

Section 11 imposing statutory duty on the promoter to convey the land

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Neeta Sawant WP 6063 of 2026

and building in favour of organisation of �at purchasers was ineffective. It

was also noticed that the organisation of �at purchasers were required to

�le suits and �ght a long litigation for securing the conveyance. It would

be apt to consider the Statement of Reasons and Objects for 2008

Amendments to Section 11 of MOFA, which is as under:

STATEMENT OF OBJECTS AND REASONS

The Maharashtra Ownership Flats (Regulation of the pr omotion, of

construction, sale, management and transfer) Act, 1963 has been enacted by the

Government of Maharashtra in the year 1963 to regulate for a certain period in

the State, the promotion of the construction of, the sale and management, and

the transfer of �ats on ownership basis. The said Act has been enacted to

effectively prevent the sundry abuses and malpractices which had been on

increase, consequent upon the acute shortage of housing in the several areas of

the State.

2. It has come to the notice of the Government that the objective behind

enactment of the said law is not fully achieved and its implementation

has not been effective enough to curb certain malpractices and sundry

abuses by the promoters or developers of the properties. Therefore, to

make provisions of the said Act more effective and to safeguard interests of the

purchaser of the �ats, the Government of Maharashtra considers it expedient to

carry out certain amendments to the existing provisions of the said Act. The

important amendments proposed to be carried out are as follows:-

(a) It is proposed to provide for appointment of one or more Competent

Authorities for different local areas who would, on failure on the part of the

promoter,-

(1) to form a co-operative society of the persons who have purchased the �ats

from the promoter, on application received from such purchasers, direct the

District Deputy Registrar, Deputy Registrar or, as the case may be, the Assistant

Registrar of Co-operative Societies to register the co-operative society of such

�at owners:

(i) to execute a conveyance within the prescribed period as provided

in section 11, on receiving an application from the �at owner members of

a co-operative society, issue a certi�cate to such society certifying that the

said society was entitled to have a conveyance registered and that it is a

�t case for execution of a unilateral conveyance as a ' deemed conveyance

in favour of the said society. by the Registration Of�cer under the

Registration Act, 1908.-

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(b) To serve as a deterrent, a provision is also being made for disqualifying a

promoter, convicted under the said Act (except under section 12A), for a period

of �ve years so as to debar him from being granted any permission by the local

authorities under the relevant laws for undertaking construction of �ats.

(c)The proceedings before the Competent Authority are given the status of

judicial proceedings for the purposes of sections 193 and 228 of the Indian

Penal Code and every Competent Authority is to be deemed to be a Civil Court

for the purpose of sections 345 and 347 of the Code of Criminal Procedure,

1973.

3. The Bill seeks to achieve the above objectives.

(emphasis added)

18) The Legislature has therefore created a faster and swifter

mechanism of unilateral deemed conveyance without the consent of the

landowner or promoter. Accordingly, provisions of sub-sections (3), (4)

and (5) are introduced in Section 11 of MOFA wherein an organisation of

�at purchasers can �le an application before the Competent Authority

and seek certi�cate of unilateral deemed conveyance of land and building

which can be registered as a conveyance under sub-section (5).

Provisions of Section 11 of MOFA read thus:

11. Promoter to convey title, etc., and execute documents, according to

agreement.—

(1) A promoter shall take all necessary steps to complete his title and convey to

the organisation of persons, who take �ats, which is registered either as a co-

operative society or as a company as aforesaid or to an association of �at 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 �le with the Competent Authority,

within the prescribed period, a copy of the conveyance executed by him under

sub-section (1).

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(3) If the promoter fails to execute the conveyance in favour of the Co-operative

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 Co-operative 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 �ats and all other relevant documents

(including the occupation certi�cate, if any), for issuing a certi�cate 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 satis�ed that it is a �t case for issuing such certi�cate, shall

issue a certi�cate to the Sub-Registrar or any other appropriate Registration

Of�cer under the Registration Act, 1908 (16 of 1908), certifying that it is a �t

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 Of�cer appointed under the Registration Act, 1908 (16

of 1908), the certi�cate issued by the Competent Authority alongwith the

unilateral instrument of conveyance, the Sub-Registrar or the concerned

appropriate registration Of�cer shall, notwithstanding anything contained in

the Registration Act, 1908 (16 of 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 satis�ed that it was �t case for

unilateral conveyance, register that instrument as, ‘deemed conveyance’.

19) Under sub-section (1) of Section 11 of MOFA, there is a

statutory duty on the promoter to convey in favour of the organisation of

�at purchasers the land and the building within the prescribed period. If

the promoter fails to perform the statutory duty under Section 11(1) of

the Act, there is a remedy for the organisation of �at purchasers under

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Section 11(3). The application for unilateral deemed conveyance can be

�led by the organisation of �at purchasers under sub-section (3) of

Section 11 of MOFA ‘If the promoter fails to execute the conveyance’. Thus,

occurrence of failure by the promoter to convey the land and building

becomes a jurisdictional fact for the Competent Authority to exercise

jurisdiction under Section 11(3). The ‘failure’ within the meaning of

Section 11(3) occurs when the promoter fails to execute conveyance

under Section 11(1) within the prescribed period. Rule 9 of Maharashtra

Ownership Flats (Regulation of the Promotion of Construction etc.) Rules,

1964 (MOFA Rules) has prescribed the period for promoter to convey the

land and building as four months from the date on which a co-operative

society or a company is registered or an association of �at purchasers is

constituted. Rule 9 of MOFA Rules reads thus:

9. Period for conveyance of title of promoter to organisation of Flat

purchasers

If no period for conveying the title of the promoter to the organisation of the

�at purchasers is agreed upon, the promoter shall (subject to his right to

dispose of the remaining �ats, if any) execute the conveyance within four

months from the date on which co-operative society or the company is

registered or, as the case may be, the association of �at takers is duly

constituted.

When a promoter has submitted his property to the prov isions of the

Maharashtra Apartment Ownership Act, 1970 by executing and regustering a

Declaration as required by section 2 of that Act, and no period for conveying the

title of the promoter in respect of an apartment to each apartment-taker is

agreed upon, the promoter shall execute the conveyance or deed of apartment

in favour of each apartment-taker within four months from the date the

apartment-taker has entered into possession of his apartment.

The promoter shall �le with the Competent Authority a copy of the conveyance

executed by him under sub-section (1) of section 11 within a period of two

months from the date of its execution.

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20) Before proceeding further, provisions of Section 16 of MOFA

also needs to be noted. Noting that the provisions of the Transfer of

Property Act, 1882 may come in the way of implementation of the

statutory scheme of MOFA and to ensure that the contracts to the

contrary executed by the developers do not defeat the statutory rights of

the �at purchasers, the Legislature has incorporated Section 16 in MOFA,

which provides thus:

16. Act to be in addition to Transfer of Property Act and to over-ride

contract to the contrary.—

The provisions of this Act, except where otherwise provided, shall be in addition

to the provisions of the Transfer of Property Act, 1882 (IV of 1882), and shall

take effect notwithstanding anything to the contrary contained in any contract.

21) Thus Section 16 of MOFA overrides contractual covenants to

the contrary. Section 16 is an important provision, which is aimed at

nullifying any private deal or unfair bargain struck by the developers with

the �at purchasers and ensures that the statutory rights of the �at

purchasers would override such contractual deal/bargain. When the

statutory scheme of MOFA and MOFA Rules provide for obligation and

duty to convey the land and the building in favour of organisation of �at

purchasers within the prescribed time, the promoter cannot contractually

agree that either there would be no conveyance or conveyance would be

executed after 25 years or that conveyance would be executed after

completion of entire layout development or that only leasehold rights in

the land would be assigned retaining the ownership in favour of

promoter/land owner, etc. Section 16 ensures that any contract to the

contrary cannot defeat the statutory right of the organisation of �at

purchasers to seek unconditional conveyance of whole of the land (as per

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Neeta Sawant WP 6063 of 2026

its entitlement) without retaining any specie of right therein in favour of

the promoter/landowner. Section 16 of MOFA is aimed at curbing the

tendencies on the part of the promoters and landowners in avoiding to

convey unconditional ownership of whole of the land.

FILING OF CONSENT TERMS AND PASSING OF DECREE IN PURSUANCE THERETO

22) In the present case, the commencement certi�cate for

construction of buildings of Respondent No.1-Society was apparently

issued on 18 October 1989 and further approval was granted on 12 August

1995. Petitioners constructed building of Respondent No.1-Society

comprising of Wings-A, B, C, D and E named ‘Orchid Enclave’. The

building received occupancy certi�cate on 2 June 2005. The �at

purchasers formed Respondent No.1-Society, which was registered on 30

January 2006. Petitioners, however, failed to execute conveyance in

favour of the Society, which led to �ling of L.C. Suit No. 901 of 2007 by

the Society. The suit was essentially required to be �led because the

Petitioners were planning to construct one more building in the layout by

name ‘Blue Bell’. Respondent No.1-Society was opposed to construction

of an additional building in the layout and therefore in L.C. Suit No.901 of

2007, they sought restraint order against Petitioner No.1 from putting any

additional construction in the form of Blue Bell building. Respondent

No.1-Society also sought prayer for conveyance of the entire larger land.

The suit was compromised between Respondent No.1-Society a nd

Petitioner No.1-developer and consent terms dated 25 September 2013

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were tendered in L.C. Suit No. 901 of 2007. The relevant clauses of the

Consent Terms are as under:

2. The Defendants no. 1 do hereby agree and undertake to assign, transfer and

convey in the exclusive and absolute favour of the Plaintiff no. 1, all that piece

and parcel of land admeasuring 13,629.84 sq. meters along with the structures

thereon shown bounded by red colour boundary including the �ve (5) wings of

the Orchid Enclave Building bearing the names as "A", "B", "C", "D" and "E"

Wing, situate lying and being on the larger plot of land bearing Sector no. R-3

admeasuring in the aggregate about 28,494.60 sq. meters and comprising of the

land bearing CTS no. 53/C, 53/A-1, 53-A/1-A, 53-A/1-D and 53-A/1-C, of Village

Chandivali, Taluka Kurla, Mumbai Suburban District and Sub-District of

Mumbai, on the plan annexed hereto and marked as ANNEXURE A strictly in

terms set out in the draft Deed of Conveyance accepted and approved by the

parties hereto and the copy whereof acknowledged as accepted and approved by

the parties is annexed herewith and marked as ANNEXURE B.

3. The Deed of Conveyance duly signed by the parties shall be lodged for

registration by the Plaintiff no. 1 in the of�ce of Sub-Registrar and the

Defendants No. 1 agree and undertake to attend the of�ce of the Sub-Registrar

of Assurances at Chembur at such time and date as may be mutually agreed

between the parties and in any event within thirty (30) days of the execution

hereof to con�rm and admit the execution and for the purposes of Registration

of the said Deed of Conveyance more particularly detailed in clause (2) above.

The Defendants no. 1 agree and undertake that the responsibility of getting the

said Deed of Conveyance registered with the concerned sub-registrar of

Assurances within the aforesaid period of thirty (30) days would be that of the

Defendants no. 1 alone. The stamp duty and registration charges, if any,

payable on the said Deed of Conveyance shall however be borne by the Plaintiff

no. 1. alone.

4. The Defendant no. 1 has on or before the execution hereof paid to the

Plaintiff no. 1 the sum of Rs. 5,00,00,000/- (Rupees Five Crores only) by Demand

Draft/Pay Order dated 18/09/2013, bearing no. 000837, drawn on HDFC Bank in

favour of the Plaintiff no. 1, as and by the way of Society Fund. The Plaintiff no.

1 admit and acknowledge the payment of the said amount. The Defendant no. 1

further agrees and undertakes to carry out the work of repairs of leakages and

the painting of the said �ve (5) wings of the Orchid Enclave Building bearing the

names as "A", "B", "C", "D" and "E" Wing and also replace / install the missing

electric poles in the garden of the Orchid Enclave complex with all requisite

permission from the competent authorities, if required. The said work shall be

carried out as soon as may be practicable and in any event within six (6) months

of the execution of these presents.

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5. The Plaintiff no. 1 in the light of the above, agree and undertake to

permanently relinquish and waive all and every of their right, title, interest

and/or claim to seek the conveyance of the land admeasuring 2662.98 sq.

meters more particularly delineated in blue colour boundary lines on the plan

annexed hereto and marked as ANNEXURE C. The Plaintiff no. 1 in

consideration of the payment of the said Society Fund, hereby withdraw and

revoke all and every of their objection to the construction of the building known

as "Blue Bell" on the said delineated land and further declare and con�rm that

the said delineated land and the building constructed thereon, as aforesaid

would at all times belong to the Defendants no. 1 and that they would be

entitled to deal with and dispose off the same as they may deem �t, without any

recourse to the Plaintiff no. 1.

6. Consequent upon to the ful�lment of its obligations by the Defendants no. 1,

in terms of clause (2), (3) and (4) above, the Plaintiff no. 1 agree and undertake

to execute and register a Deed of Lease for the period of 99 years, in respect of

the land admeasuring 3546.31 sq. meters, along with the structure constructed

thereon and more particularly delineated in green colour boundary lines in the

plan annexed herewith at Annexure C in favour of M/s. Nahar Builders and

Developers Ltd., strictly on such terms and conditions and for such

consideration as is set out in the draft Lease Deed the copy whereof, duly

accepted and approved by the parties, is annexed herewith and marked as

ANNEXURE D The Plaintiff no. 1 agree and undertake to attend to the of�ce of

the Sub-Registrar of Assurances at Chembur for the purposes of con�rmation of

the execution and for registration of the said Lease Deed simultaneous to the

registration of the Deed of Conveyance in terms of clause (2) above. The stamp

duty and the registration charges, if any, payable on the said Lease Deed and all

out of pocket expenses in respect thereof shall however be borne by the

Defendants no. 1 alone.

23) Thus, Petitioner No.1 agreed and undertook to assign,

transfer and convey land admeasuring 13,629.84 sq.m. in favour of

Respondent No.1 alongwith the structure thereon comprising of Orchid

Enclave building with ‘A’ to ‘E’ wings. Under Clause 3 of the consent

terms, Petitioner No.1 undertook to register the conveyance within a

period of 30 days of execution of the consent terms. Under Clause 5, the

Society gave up its challenge to construction of the building Blue Bell by

accepting consideration of Rs. 5 Crore from Petitioner No. 1 in addition to

promise for carrying out repairs and painting works to its buildings under

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Clause 4. Under Clause 6, the Society agreed to grant lease in respect of

land admeasuring 3546.31 sq.m. in favour of an entity named ‘Nahar

Builders and Developers Ltd.’ as per the draft annexed to the Consent

Terms. The draft of the Lease Deed annexed to the Consent Terms would

indicate that what was supposed to be leased out is the land on which the

building’s common amenities like club house, swimming pool, tennis

court, etc. are situated. The draft Lease Deed also contemplated

permission to the lessee to carry out construction of basement and

ground �oor parking spaces.

24) Thus, the Consent Terms envisage a unique arrangement

where the Petitioner No. 1, after conveying the lawfully due land to the

Society, wants the Society to hand back substantial portion (26%) of such

conveyed land to its group entity almost free of cost (on lease rent of Rs.

1). More importantly, the Consent Terms envisage loss of common

amenities meant for the Respondent No. 1 Society by handing over the

same to the developer, with further permission for the developer to

construct additional parking spaces therein. The Consent Terms thus

envisage a situation where after milking the entire development potential

�owing out of the layout land, Petitioner No. 1 wants to retain the

common amenities in the form of Club House, Swimming Pool, Tennis

Court, etc. to itself.

25) The Consent Terms were tendered in L.C. Suit No.901 of 2007

and accordingly, the learned Judge of the City Civil Court passed a decree

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in terms of the Consent Terms on 25 September 2013. Accordingly, the

decree came to be drawn up in view of the Consent Terms.

WHETHER ‘FAILURE’ ON THE PART OF PROMOTER HAS OCCURRED?

26) As observed above, failure on the part of the promoter to

convey land as per Section 11(1) becomes the jurisdictional fact for the

Competent Authority to exercise jurisdiction under Section 11(3) to grant

deemed conveyance. It is therefore necessary to examine whether a

‘failure’ within the meaning of Section 11(1) of MOFA has occurred in the

present case for the Competent Authority to exercise jurisdiction under

Section 11(3).

27) Though Petitioner No.1 agreed and undertook to convey land

admeasuring 13,629.84 sq.m. in terms of the consent terms dated 25

September 2013, he did not perform the obligation. While it completed

the construction of Blue Bell building taking bene�t of Clause-5 of the

consent terms, it failed to execute and/or register conveyance deed in

favour of Respondent No.1-Society. The Society waited for 12 long years

for Respondent No.1 to execute the conveyance. In my view therefore,

there is a ‘failure’ on the part of Petitioner No.1 to convey the land and

the building within the meaning of Section 11(1) of MOFA. The case does

not involve a situation where conveyance in terms of the decree is

actually executed. If such conveyance was executed, the ‘failure’ within

the meaning of Section 11 (3) would not have occurred and Competent

Authority could not have exercised the jurisdiction. However, since

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Neeta Sawant WP 6063 of 2026

conveyance was actually not executed, it will have to be necessarily

assumed that there is a ‘failure’ on the part of Petitioner No.1 to convey

the land and the building.

28) Section 11(1) of MOFA mandates that the promoter shall

convey his right, title and interest in the land and the building and ‘shall

execute’ all relevant documents therefor in accordance with the

agreement executed under Section 4. The act of ‘conveyance’ does not

occur unless a Deed of Conveyance is executed and registered. It is only

when the act of registration of the Conveyance Deed happens that it can

be presumed that there is ful�llment of statutory duty under Section 11(1)

and that there is no ‘failure’ on the part of the promoter. However, mere

‘agreement’ by the promoter for conveyance would not be suf�cient for

the purpose of holding that there is ful�llment of the statutory duty and

that there is no failure on the part of the promoter within the meaning of

Section 11(3) of MOFA. Failure would not occur only when the act of

conveyance is completed. The legislative objective behind Section 11 is to

ensure that the organisation of �at purchasers must be vested with title,

and legal effect of vesting gets completed only when a Deed of

Conveyance is executed and registered. Therefore, mere agreement or

undertaking by a developer to convey the land and building would not be

suf�cient to hold that there is no failure within the meaning of Section

11(3) of the Act.

29) In the present case, Petitioner No.1-developer did not convey

the land and the building in favour of Respondent No.1-Society for 12

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Neeta Sawant WP 6063 of 2026

long years after passing of the consent decree dated 25 September 2013.

In my view therefore, failure within the meaning of Section 11(3) of

MOFA has clearly occurred in the facts and circumstances of the present

case. What must be appreciated is the legislative intent behind making

provision for unilateral deemed conveyance through Competent

Authority under Section 11(3) to (5) of MOFA. The objective is to obviate

the need by organisation of �at purchasers to enter into lengthy litigation

for the purpose of seeking conveyance. The legislature has provided for a

summary enquiry while granting certi�cate of unilateral deemed

conveyance by the Competent Authority. Therefore, while the option of

�ling execution proceedings was open to Respondent No.1-Society, the

same would have resulted into a lengthy litigation between the parties.

Instead, the Society has taken aid of a swifter and faster remedy under

Section 11(3) of MOFA. Since there is ‘failure’ on the part of Petitioner

No.1-developer within the meaning of Section 11(3) of MOFA, the

Competent Authority has correctly exercised the jurisdiction in granting

certi�cate of unilateral deemed conveyance.

CONVEYANCE OF LAND WITHIN THE LIMITS OF CONSENT TERMS

30) In the present case, upon noticing failure on the part of the

promoter, Competent Authority has exercised the jurisdiction and has

conveyed in favour of Respondent No. 1 Society land admeasuring

13578.293 sq.m. Under the Consent Terms, the Petitioner No. 1 had

agreed and undertaken to convey land admeasuring 13629.84 sq.m. to

Respondent No. 1 Society. Thus, the case does not involve conveyance of

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Neeta Sawant WP 6063 of 2026

land to Respondent No.1-Society by the Competent Authority in excess

than the one agreed in the Consent Terms. This is clear from the

following:

Land agreed to be conveyed Land conveyed vide certi�cate of

unilateral deemed conveyance

13629.84 sq.m. 13578.293 sq.m.

31) Similarly, Rosa Alba Society also does not get land lesser than

the one agreed under the Consent Terms. This is clear from the following:

Land reserved for Rosa Alba

Society under Consent Terms

Land remaining balance after

conveyance in favour of

Respondent No.1 Society

2662.98 sq.m. 2714.527

32) Thus, it cannot be contended that the certi�cate of unilateral

deemed conveyance issued by the Competent Authority contravenes the

Consent Terms in any manner. In fact, the certi�cate conveys lesser land

to Respondent No.1-Society than the one agreed in the Consent Terms.

IS CERTIFICATE OF DEEMED CONVEYANCE BAD FOR NON-GRANT OF LEASE IN

FAVOUR OF PETITIONERS?

33) Mr. Damle has contended that the certi�cate of deemed

conveyance does not take into consideration the right of Petitioners to

have a lease in respect of land admeasuring 3546.31 sq.m. and that

therefore the same contravenes the consent terms. I am unable to agree.

The Competent Authority exercising jurisdiction under Section 11 of

MOFA is not expected to decide entitlement of the developer to secure

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lease in respect of the conveyed land from the society. That enquiry

would be outside the jurisdiction of the Competent Authority. The

Competent Authority has limited jurisdiction to convey land and building

in favour of the society. If the developer is entitled to secure any other

right in the property, he needs to adopt appropriate proceedings for the

same and he cannot expect the Competent Authority to grant such right.

In the present case, it was not competent for the Competent Authority to

direct Respondent No.1-Society to execute conveyance of lan d

admeasuring 3546.31 sq.m. in favour of the Petitioners. Reliance in this

regard by Mr. Khandeparkar on judgment of this Court in Nahalchand

Laloochand Pvt. Ltd. vs. Shri. Panchamrut CHSL (supra) outlining the

limited scope of inquiry under Section 11 by the Competent Authority is

apposite.

34) Clause 6 of the Consent Terms begins with the expression

‘Consequent upon to the ful�lment of its obligations by the Defendants no. 1,

in terms of clause (2), (3) and (4) above’. Thus, the occasion for execution of

lease under the Consent Terms would arise only after the land was �rst

conveyed in favour of the Respondent No. 1-Society. That event itself had

not occurred and therefore the Society was required to knock the doors of

the Competent Authority to �rst seek conveyance of land in its favour. All

that is done at this juncture is conveyance of land in favour of the

Respondent No. 1 Society. The order of the Competent Authority, in no

manner, comes in the way of Petitioners seeking execution of the consent

decree for seeking lease of portion of the conveyed land.

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35) It also appears that under the Consent Terms, lease of land

admeasuring 3546.31 sq.m. was agreed to be conveyed in the name of an

altogether different entity ‘M/s. Nahar Builders and Developers Ltd.’.

Petitioner No. 1 before me is ‘Nahar Builders Ltd’. Whether both the

entities are same or distinct is unknown. Secondly, the said entity or

Petitioner No.1 have the remedy of seeking execution of the conveyance

deed for the purpose of securing lease in respect of land admeasuring

3546.31 sq.m. In such execution proceedings, Respondent No.1 would be

entitled to raise all defences. Whether a promoter can seek back lease of

portion of the conveyed land and whether such a term is in accordance

with the provisions of Sections 4 and 11 of MOFA is something which can

be decided in appropriate proceedings. This Court need not delve deeper

into those issues. Suf�ce it to hold that mere agreement in the consent

terms for execution of lease of land admeasuring 3546.31 sq.m. in favour

of the entity M/s. Nahar Builders and Developers Ltd. cannot be a ground

for Competent Authority not to convey the land and the building in

favour of Respondent No.1-Society. In my view therefore, the impugned

order passed by the Competent Authority does not contravene the

consent decree in any manner.

36) Mr. Damle has strenuously relied on judgment of this Court

in Nahar Seth & Jogani Developers Pvt. Ltd. (supra). However, careful

perusal of the observations made by this Court in that judgment would

indicate that jurisdiction of Competent Authority to decide application

under Section 11(3) of MOFA after execution of the consent terms is not

negatived by this Court. On the other hand, this Court has repeatedly held

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in that judgment that Competent Authority was expected to apply its

mind to the consent decree and consent terms and then pass order of

unilateral deemed conveyance. This is clear from the following

observations made by this Court in the judgment:

12. ... Once the entire position was placed before the Competent Authority, all

that the Competent Authority was required to do was to apply its mind to the

Consent Decrees and Consent Terms.

13. It is seen that Competent Authority has miserably failed to apply its mind

and without considering the essence of the same has passed the impugned

order. ...

14. ... The Consent Terms and the Consent Decrees passed by the Civil Court are

completely disregarded and set to naught by virtue of the impugned order dated

04.03.2022. Such an impugned order is clearly not sustainable.

37) Thus, judgment of this Court in Nahar Seth & Jogani

Developers Pvt. Ltd. does not conclude that Competent Authority ceases

to have jurisdiction under Section 11 of MOFA after a consent decree is

passed based of consent terms �led by the parties. All that this Court has

held in Nahar Seth & Jogani Developers Pvt. Ltd. is that the Competent

Authority ought to have granted conveyance in accordance with the

consent terms. In the present case, the Competent Authority has not

contravened the consent decree while exercising its limited jurisdiction

under Section 11(3) and (4) of MOFA and has conveyed lesser land than

the one contemplated in the consent decree. It appears that in the facts of

the case in Nahar Seth & Jogani Developers Pvt. Ltd., while setting aside

the order passed by the Competent Authority, this Court has issued

directions for execution of deed of conveyance by the developer in favour

of the society and deed of lease by the society in favour of the developer. I

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am unable to follow the said course of action in the present case for

variety of reasons. Firstly, this Court is exercising supervisory jurisdiction

over the order passed by the Competent Authority, which did not have

jurisdiction to direct execution of lease in favour of the developer under

Section 11 of MOFA. Therefore, what could not have been done by the

Competent Authority cannot be done by this Court in exercise of

jurisdiction under Article 227 of the Constitution of India. Secondly and

more importantly, execution of lease under thee Consent Terms is

dependent on Petitioner No.1 executing repairs and painting works in the

building of Respondent No.1 Society. It is not known whether Petitioner

No.1 has ful�lled that obligation or not. Performance of obligations under

the consent terms is sequential (which aspect is dealt with in greater

details in the latter part of the judgment). Therefore in the facts of this

case, it is not possible to issue a direction to the Respondent No.1 Society

to execute lease in favour of Petitioner No.1. Thirdly, in the facts of the

present case, this Court is satis�ed that the order of the Competent

Authority directing conveyance of lesser land than the one agreed in the

consent terms does not amount to violation of the consent terms.

38) As observed above, if Petitioners want to have the lease of

the portion of the land executed in their favour, they need to exercise

remedy available in law. Mr. Damle has submitted that Petitioners have

already �led application for execution of the consent decree dated 25

September 2013. Copy of the Execution Application No. 31 of 2026 is

placed on record at Exhibit-J to the Petition. The date of �ling of

Execution Application is not disclosed by the Petitioners. But the same

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appears to have been �led after �ling of Application for deemed

conveyance by the Respondent No. 1 Society. Thus, the Petitioners, who

showed no interest in acting in terms of the Consent Decree for 12 long

years, suddenly developed interest in execution of decree and �led

Execution Application, �ling of which was aimed at somehow defeating

the Application for deemed conveyance. This conduct on the part of the

Petitioner needs to be deprecated. The direction sought for by the

Petitioners in Execution Application again shows that the conveyance of

land by the Competent Authority does not contravene the consent decree.

In Clause ‘J’ of Execution Application, Petitioners have sought a direction

that Plaintiff-society is entitled to portion of land admeasuring 13629.84

sq.m. As against this, the Competent Authority has conveyed land

admeasuring 13578.293 sq.m. to Respondent No. 1 Society.

39) Petitioner can press its entitlement for execution of lease

before the Executing Court which can decide the same after taking into

consideration all defences that can be raised by Respondent No.1-Society.

Therefore there is no warrant for setting aside the order of the Competent

Authority only because the order does not grant lease of portion of land in

favour of the Petitioner.

APPLICATION OF PRINCIPLE OF ESTOPPEL

40) Mr. Damle has relied upon judgment of the Apex Court in

Ajanta LLP (supra) in support of his contention that a compromise decree

creates estoppel by judgment. The judgment also holds that a consent

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PAGE NO. 31 of 43

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decree would not serve as an estoppel where compromise was vitiated by

fraud, misrepresentation or mistake. The Apex Court has held in paras-20

to 22 as under:

20. Resolving a dispute pertaining to a compromise arrived at between the

parties, this Court in Shankar Sitaram Sontakke [Shankar Sitaram

Sontakke v. Balkrishna Sitaram Sontakke, AIR 1954 SC 352] held as under : (AIR

p. 353, para 7)

“7. … If the compromise was arrived at after due consideration by the

parties and was not vitiated by fraud, misrepresentation, mistake or

misunderstanding committed by the High Court — the �nding which was

not interfered with by the High Court — it follows that the matter which

once concluded between the parties who were dealing with each other at

arm's length cannot now be reopened.”

21. A judgment by consent is intended to stop litigation between the

parties just as much as a judgment resulting from a decision of the Court

at the end of a long drawn-out �ght. A compromise decree creates an

estoppel by judgment [Byram Pestonji Gariwala v. Union Bank of India, (1992) 1

SCC 31] . It is relevant to note that in Byram Pestonji Gariwala [Byram Pestonji

Gariwala v. Union Bank of India, (1992) 1 SCC 31], this Court held that the

appellant therein did not raise any doubt as to the validity or genuineness of the

compromise nor was a case made out by him to show that the decree was

vitiated by fraud or misrepresentation. While stating so, this Court dismissed

the appeal.

22. A consent decree would not serve as an estoppel, where the

compromise was vitiated by fraud, misrepresentation, or mistake. The

Court in exercise of its inherent power may rectify the consent decree to ensure

that it is free from clerical or arithmetical errors so as to bring it in conformity

with the terms of the compromise. Undoubtedly, the Court can entertain an

application under Section 151CPC for alterations/modi�cation of the consent

decree if the same is vitiated by fraud, misrepresentation, or misunderstanding.

(emphasis added)

41) While Mr. Damle contends that the principle of estoppel

applies and the Respondent No. 1 Society could not have �led application

for deemed conveyance after the consent decree, Mr. Khandeparkar has

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relied on the judgment of this Court in Prestige Garden A-1 CHSL (supra)

in support of his contention that the principle of estoppel has no

application against provisions of a statute. He contends that if MOFA

creates a remedy under Section 11 in favour of the Society upon occasion

of ‘failure’ by the developer, the Society cannot be estopped from

exercising that remedy as provisions of Section 16 of MOFA creates an

overriding effect over any private arrangement between the parties. It is

Society’s contention that the scheme of MOFA does not permit a

promoter/developer to seek back portion of the conveyed land. In my

view, it is not necessary to delve deeper into the issue of application of

principle of estoppel. As of now, this Court is not concerned with the

issue as to whether the compromise leading to consent decree is lawful or

not. That issue would arise when the Petitioners’ application for

execution would seek execution of the consent decree for lease of portion

of the conveyed land is decided. Suf�ce it to observe that in a given case

where a cooperative housing society had acted on the certi�cate of

unilateral deemed conveyance by registering Deed of Conveyance for

lesser area of land, this Court in Prestige Garden A-1 CHSL still

permitted the society to challenge the order of deemed conveyance for

seeking conveyance of higher area of land by holding that there cannot be

estoppel against a statute.

42) Ordinarily, what Mr. Khandeparkar contends could have been

accepted if the arrangement between the parties was in the form of a

mere agreement. In that case, provisions of Section 16 of MOFA would

have nulli�ed the agreement between the parties upon being

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demonstrated that the same is contrary to the provisions of MOFA and

mere act of the Society in entering into the agreement would not have

acted as estoppel. In judgment of this Court in Paramanand Builders LLP

(supra) relied upon by Mr. Khandeparkar, this Court has held that internal

arrangement between the parties cannot nullify the mandate of Section

11 of MOFA. However, in the present case, parties have �led the

agreement in the Court and have obtained imprimatur of the Court

thereon. In the present case there is no adjudication of rights and

liabilities by the City Civil Court. It has merely recorded compromise

between the parties and has put its seal on the private agreement. It is

only the imprimatur of the court on the agreement which stops the Court

from declaring, in these proceedings, that provisions of MOFA would

override the private arrangement made between the parties. That

declaration needs to be sought in appropriate proceedings. Respondent

No. 1 Society can either raise that defence before the Executing Court (if

permissible) or it can adopt separate proceedings for seeking a

declaration that the compromise is not lawful.

SEQUENTIAL PERFORMANCES UNDER THE CONSENT DECREE

43) Under the Consent Terms, the reciprocal performances

agreed are sequential. Clause 6 of the Consent Terms begin with the

expression ‘Consequent upon to the ful�lment of its obligations by the

Defendants no. 1, in terms of clause (2), (3) and (4) above’. Therefore, the

�rst act agreed and undertaken as per the Consent Terms was to be

performed by the Petitioner No. 1, who was to �rst convey the land in

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favour of the society. The second act was again for Petitioner No. 1 to

perform where it was supposed to register the conveyance deed within 30

days. The third act was once again for the Petitioner No. 1 to perform

where it was required to carry out, within 6 months, the work of repairs of

leakages and the painting of the �ve wings of Orchid Enclave Building,

replace/install electric poles in the garden on complex. It is only after the

�rst, the second and the third acts were performed by the Petitioner No. 1

that the Respondent No. 1 Society was supposed to execute the lease of

portion of land in favour of the entity Nahar Builders and Developers Ltd.

44) It is an admitted position that none of the said three acts are

performed by the Petitioner No. 1. Therefore, no occasion arose for

Respondent No. 1 to execute the lease. Since performance of the �rst act

itself did not occur, the Society was required to seek remedy under

Section 11 of MOFA to get conveyance executed in its favour. It is only

after the conveyance was sought from the Competent Authority that the

Petitioners thought of �ling Application for Execution. As of now, only

�rst part of the performance under the consent decree has taken place. If

Petitioners believe that they are entitled to secure lease of portion of

conveyed land, it will be for them to secure the same in execution

proceedings as the Authority under Section 11 of MOFA is not competent

to grant that relief in favour of Petitioners. Similarly, if Respondent No.1-

Society believes that the scheme of MOFA does not permit the promoter

to seek back portion of the conveyed land, it will have to adopt

appropriate proceedings seeking such a declaration or it can defend

execution proceedings by taking that defence, if permissible in law.

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Considering the unique statutory scheme of MOFA, it is dif�cult to hold

that the remedy of Respondent No. 1 Society under Section 11(3) of

MOFA is barred even where the promoter has failed to convey the land

despite passage of more than 12 years of the parties entering into consent

terms.

OBJECTIVE OF PETITIONERS

45) As observed above, the whole objective behind challenging

the Order of deemed conveyance by the Petitioners is to ensure that the

Society does not receive the conveyance of its due land entitlement. Apart

from delaying the conveyance for eternity, the Petitioner-developers

want to retain with themselves the land meant for common amenity

spaces to be used by the residents of the building. Thus, after milking the

entire development potential in the layout land, Petitioners desire that

they must receive lease of land on which Society’s common amenities

such as club house, swimming pool, etc are located. The FSI/BUA for

construction of buildings of Respondent No. 1 Society has also arisen out

of the land admeasuring 3546.31 sq.m. It would need that land for

sustenance of its building. As observed above, whether a compromise for

leasing back portion of conveyed land in favour of the developer is lawful

within the meaning of Order XXIII Rule 3 of the Code of Civil Procedure

1908 (CPC) is something which would be decided in appropriate

proceedings. Petitioners’ remedy of seeking lease of land admeasuring

3546.31 sq.m. is not barred on account of passing of the impugned order

by the Competent Authority. In such circumstances, the objective of the

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Petitioners in avoiding conveyance of land in favour of Respondent No.1

Society by raising technical objection needs to be appreciated and the

order of the Competent Authority conveying land due to Respondent No.1

Society need not be disturbed.

IS THIS A CASE FOR THIS COURT TO EXERCISE EXTRAORDINARY JURISDICTION

UNDER ARTICLE 227?

46) Present is a case where Petitioner No.1-developer has acted

in gross violation of provisions of MOFA. It has failed to perform the

statutory obligations of conveying the land and the building in favour of

the Society. From its conduct, it is more than apparent that it has avoided

to execute conveyance in favour of the Society. It �rst made Respondent

No.1-Society approach City Civil Court by �ling a suit. Even after the

consent decree, it took no steps for 12 long years to act on the said

Consent Terms. Now the Petitioners take a very specious stand that

Respondent No.1-Society ought to have exercised the remedy of seeking

execution of the consent decree. The objective behind taking this stand is

more than obvious viz. to embroil Respondent No.1-Society in another

round of lengthy litigation. Whether this Court can be a party to such

oblique objective of the developer is the question. The answer, to my

mind, appears to be in emphatic negative. This Court would not permit its

extraordinary jurisdiction under Article 227 to be misused by a party like

the Petitioner whose only objective is to somehow avoid grant of

conveyance of land and building in favour of the Society and to retain

control over the same for eternity. Far from assisting such a developer,

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this Court would in fact come down heavily on such tendencies and would

refuse to allow its jurisdiction to be misused for perpetuating unlawful

gain. The extraordinary jurisdiction under Section 227 need not be

exercised by the High Court to correct every error of law and fact when

the �nal �nding is found to be justi�ed or found to be supported. In this

regard, reference can be made to the judgment of the Apex Court in

Garment Crafts vs. Prakash Chand Goel

9

in which it has held in para-15

as under:

15. Having heard the counsel for the parties, we are clearly of the view that the

impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del

11943] is contrary to law and cannot be sustained for several reasons, but

primarily for deviation from the limited jurisdiction exercised by the High Court

under Article 227 of the Constitution of India. The High Court exercising

supervisory jurisdiction does not act as a court of �rst appeal to reappreciate,

reweigh the evidence or facts upon which the determination under challenge is

based. Supervisory jurisdiction is not to correct every error of fact or even a

legal �aw when the �nal �nding is justi�ed or can be supported. The High Court

is not to substitute its own decision on facts and conclusion, for that of the

inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar

Kholkar, (2010) 1 SCC 217] The jurisdiction exercised is in the nature of

correctional jurisdiction to set right grave dereliction of duty or �agrant abuse,

violation of fundamental principles of law or justice. The power under Article

227 is exercised sparingly in appropriate cases, like when there is no evidence at

all to justify, or the �nding is so perverse that no reasonable person can possibly

come to such a conclusion that the court or tribunal has come to. It is axiomatic

that such discretionary relief must be exercised to ensure there is no

miscarriage of justice.

47) In the facts of the present case, this Court is ultimately

satis�ed that Respondent No.1-Society is rightly conveyed land

admeasuring 13,578.293 sq.m. (as against the land agreed to be conveyed of

13,629.84 sq.m. under the consent terms). Therefore, the impugned order

of the Competent Authority need not be interfered with by entertaining

9

(2022) 4 SCC 181

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technical objections sought to be raised by the Petitioners that the

Respondent No.1-Society must �le execution proceedings for execution

of the consent decree.

48) It is also well-settled principle that when extraordinary

jurisdiction of High Court is invoked, Petitioner must show that the

justice is on his side. Useful reference in this regard can be made to the

observations of the Chief Justice M. C. Chagla of this Court, speaking for

the Division Bench in State of Bombay vs. Morarji Cooverji

10

, in which it

is held as under:

42. … This is, on the contrary, a case where the premises requisitioned for a

public purpose are occupied by a Government servant and are sought to be

taken possession of by the landlord by asking the Court to throw the

Government servant out and restore possession to the landlord when that

landlord has never shown its need of those premises by occupying them himself.

Therefore, this is clearly a case where justice is not on the side of the

petitioner, it is on the side of the State, and we see no reason why we

should grant any relief to the petitioner.

***

44. With respect to the learned Judge, the matter is much more serious than

merely the question of this particular vacancy of 1956 not being relevant to the

vacancy which is the subject-matter of the requisition order. On a writ

petition, as we have already said, the petitioner has not merely to show

good faith, but he has not to suppress any facts and has also to show that

justice lies on its side. If the learned Judge had taken these circumstances into

consideration and then had come to the conclusion that the discretion should

be exercised in favour of the landlord, then undoubtedly we would not have

interfered with the order passed by the learned Judge.

(emphasis added)

49) In M.P. Mittal Versus. State of Haryana

11

, the Apex Court

has held that while exercising jurisdiction under Article 226 of

10

1958 SCC OnLine Bom 188

11

(1984) 4 SCC 371

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Constitution of India, it is open to the High Court to consider whether it

should decline relief to a Petitioner if grant of relief would defeat the

interest of justice. The Court can always refuse relief if Petitioners seek

to invoke jurisdiction in order to secure dishonest advantage or to

perpetuate an unjust gain. It has been held by the Apex Court in para-5 as

under:

5. Now there is no dispute that the appellant knowingly and deliberately

entered into the guarantee agreement and is liable as guarantor to make

payment of the dividend due from Messrs Depro Foods Limited. Nor is it

disputed that the amount due, with interest, stands at Rs 2,02,166—in respect of

the period ending with the year 1977. It was not contended that the appellant in

fact does not possess suf�cient funds or cannot avail of suf�cient personal

property for the purpose of discharging the liability. The record also shows that

before instituting coercive proceedings, the Assistant Collector provided the

appellant an opportunity to pay up the amount due from him and that the

appellant made no attempt to discharge the liability. When that is so, we are of

opinion that he is not entitled to relief in these proceedings. The appeal arises

out of a writ petition and it is well-settled that when a petitioner invokes

the jurisdiction of the High Court under Article 226 of the Constitution, it

is open to the High Court to consider whether, in the exercise of its

undoubted discretionary jurisdiction, it should decline relief to such

petitioner if the grant of relief would defeat the interests of justice. The

court always has power to refuse relief where the petitioner seeks to

invoke its writ jurisdiction in order to secure a dishonest advantage or

perpetuate an unjust gain. This is a case where the High Court was fully

justi�ed in refusing relief. On that ground alone, the appeal must fail.

(emphasis added)

50) Therefore, in the facts and circumstances of the present case,

I am not inclined to exercise jurisdiction in favour of the Petitioner to

interfere in the impugned order passed by the Competent Authority. The

judgment obviously is not to be read to mean that in every case where

there is a decree of Civil Court, the Competent Authority can exercise

jurisdiction under Section 11(3) of MOFA or can pass order contrary to the

decree. The judgment is rendered in unique facts and circumstances of

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the present case where there is gross failure on the part of the promoter

to convey land, the conveyed land is within the limits of agreement under

the Consent Terms and the remedy of the Petitioners to have the lease

executed in their favour is not barred.

JUDGMENTS RELIED ON BY PETITIONERS

51) Mr. Damle has also relied upon judgment of the Apex Court

in S. Malla Reddy (supra) in support of his plea of res judicata. The

judgment however is an authority on the proposition that parties cannot

repeatedly �le proceedings in a different form by quoting different

provisions of law for the same relief which was negatived earlier. The

judgment is rendered in the unique facts of the case where the Defendant

therein had initially admitted Plaintiff’s claim in the written statement

and later �led two applications for striking off the admission in the

written statement (Order VI Rule 16 CPC) and for seeking permission to

�le detailed written statement (Order VIII Rule 9 CPC) after changing the

advocate. Both applications were dismissed and the dismissal attained

�nality till the Apex Court. Thereafter, the Defendant therein �led

application for amendment of written statement (Order VI Rule 17 CPC),

which was allowed by the Trial Court. In these peculiar facts, the Apex

Court held that the Defendant therein could not have �led repeated

applications for same relief. The Apex Court upheld the Order of the High

Court dismissing the application for amendment of written statement.

The law enunciated by the Apex Court in S. Malla Reddy does not apply

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in the facts and circumstances of the present case as Respondent No.1’s

plea for conveyance has never been rejected in the earlier proceedings.

52) The judgment in Sanu Enterprises (supra) involved case of

�ling of second application for deemed conveyance after rejection of the

�rst application by the Competent Authority, which is not the factual

situation in the present case. Therefore, ratio the judgment is

inapplicable to the facts of the present case.

CONCLUSION AND ORDER

53) Considering the overall conspectus of the case, I am of the

view that no interference is warranted in the impugned order of deemed

conveyance which appears, to my mind, as unexceptionable. Writ Petition

is devoid of merits. It is accordingly dismissed with no order as to costs.

It is however clari�ed that observations made by this Court in the

judgment shall not come in the way of parties exercising their respective

remedies in relation to consent decree.

[SANDEEP V. MARNE, J.]

54) After the judgment is pronounced, the learned counsel

appearing for Petitioner seeks continuation of ad-interim order passed on

5 May 2026. The request is opposed by the learned counsel appearing for

the �rst Respondent-society. Considering the nature of �ndings recorded

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Neeta Sawant WP 6063 of 2026

in the judgment, I am not inclined to continue the stay. The request is

accordingly rejected.

[SANDEEP V. MARNE, J.]

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PAGE NO. 43 of 43

28 July 2026

NEETA

SHAILESH

SAWANT

Digitally

signed by

NEETA

SHAILESH

SAWANT

Date:

2026.07.28

20:56:27

+0530