As per case facts, builders/promoters, Ornet Park-D Wing Sahakari Gruh Rachana Sanstha Maryadit (petitioner in WP 64/2014) assailed orders granting deemed conveyance to respondent cooperative societies (Balwantpuram Shefalika Heights). The ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 64 OF 2014
1.Ornet Park-D Wing Sahakari Gruh
Rachana Sanstha Maryadit,
Balavantpuram, Shivtirth Nagar,
Poudroad, Kothrud, Pune -411 038
Through its Secretary
Shri. Shirish C. Joshi, Age adult
Occu.: Business R/o As above… Petitioner
V/s.
1.Balwantpuram Shefalika Heights,
Sahakari Gruha Rachana Sanstha
Maryadit, Shivtirth Nagar, Kothrud,
Pune, Through its Chairman/Secretary
2.District Deputy Registrar,
Having office at Pune
3.M/s. Pethkar Projects,
Having its office at Shanivar Peth,
Appa Balwant Chowk,
Pune 400 030 … Respondents
WITH
WRIT PETITION NO. 8953 OF 2015
1.Pethkar Projects
having office at S No.117+118,
Plot No. 21-B, Madhavnaug,
Paud Road, Kothrud, Pune- 411038
2.Kumudini Chandrakant Pethkar
Adult, Occ: Business, Having office at
S. No.117+118, Plot No.21-B,
Madhavnaug, Paud Road,
Kothrud, Pune-411038.…
Petitioners
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.04.18
14:46:13 +0530
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V/s.
1.Balwantpuram Samrajya Sahakari
Gruha Rachana Sanstha Maryadit,
S. No.110/1/A, Shivtirth Nagar,
Kothrud, Pune - 411038
2.District Deputy Registrar,
Having office at Pune … Respondents
WITH
CIVIL APPLICATION NO. 388 OF 2019
IN
WRIT PETITION NO.8953 OF 2015
Balwantpuram Samrajya L6 (H, I, J, K)
Coop. Housing Society Limited,
S. No.110/1/A, Shivtirth Nagar,
Kothrud, Pune – 411038
through it’s Chairman/Secretary…
Applicant
In the matter between
1.Pethkar Projects
having office at S No.117+118,
Plot No. 21-B, Madhavnaug,
Paud Road, Kothrud, Pune- 411038
2.Kumudini Chandrakant Pethkar
Adult, Occ: Business, Having office at
S No.117+118, Plot No.21-B,
Madhavnaug, Paud Road,
Kothrud, Pune-411038.... Petitioners
V/s
1.Balwantpuram Samrajya Sahakari
Gruha Rachana Sanstha Maryadit,
S. No.110/1/A, Shivtirth Nagar,
Kothrud, Pune – 411038
2.District Deputy Registrar,
Having office at Pune
… Respondents
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WITH
WRIT PETITION NO. 10210 OF 2013
1.Pethkar Projects
having office at 538 b/3 Shanivar Peth,
Appa Balwant Chowk, Pune-400 030
2.Kumudini Chandrakant Pethkar
Adult, Occ: Business, Having office at
538 b/3, Shanivar Peth,
Appa Balwant Chowk, Pune 400 030…
Petitioners
V/s.
1.Balwantpuram Shefalika Heights,
Sahakari Gruha Rachana Sanstha
Maryadit, Shivtirth Nagar, Kothrud,
Pune, Through its Chairman/Secretary
2.District Deputy Registrar,
Having office at Co-operative Societies
Sakhar Sakul, Shivaji Nagar,
Pune- 411005…
Respondents
Mr. S. S. Patwardhan with Mr. A. A. Hardas with Mr. A.
S. Patwardhan, for Petitioners in WP/8953/2015 and
WP/10210/2013 & for respondent No.3 in
WP/64/2014.
Mr. Ajay A. Joshi for the petitioner in WP/64/2014.
Mr. Nitin P. Deshpande, for Respondent no. 1 in
WP/8953/2015 and WP/10210/2013 & WP/64/2014.
Ms. Snehal Jadhav, AGP for State-Respondent no. 2 in
WP/8953/2015.
Mr. Aloka Nadkarni, AGP for State-Respondent no. 2 in
WP/10210/2013.
Dr. Dhruti Kapadia, AGP for State-respondent no. 2 in
WP/64/2014.
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CORAM :AMIT BORKAR, J.
RESERVED ON :MARCH 23, 2026
PRONOUNCED ON:APRIL 18, 2026
JUDGMENT:
1.By the present writ petitions instituted under Articles 226
and 227 of the Constitution of India, the petitioners have assailed
the order dated 27 February 2015 passed by Respondent No. 2 in
Writ Petition No. 8953 of 2015 and the order dated 14 October
2013 passed by Respondent No. 2 in Writ Petition No. 10210 of
2013.
2.In Writ Petition No.64 of 2014, the petitioner society , by
way of the present petition filed under Articles 226 and 227 of the
Constitution of India, has assailed the Judgment and Order dated
14 October 2013 passed by Respondent No. 2 under Section 11 of
the Maharashtra Ownership Flats Act, 1963 in Application No. 174
of 2013.
3.The facts giving rise to the present petitions, in brief, are that
Respondent No. 1 came to be registered as a Co-operative Society
on 17 May 2012. It is the case that thereafter the petitioners, being
the builders/promoters, failed and neglected to execute
conveyance in favour of the said Society on the purported ground
that they intended to complete the entire project, constitute a
Federal/Apex Society of all smaller societies, and thereafter
transfer the title in favour of such Apex Society. It is contended
that the concept of conveying title to an Apex Society upon
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completion of the entire project and all its phases is not
contemplated either under the provisions of the Maharashtra
Ownership of Flats Act, 1963 or under Maharashtra Act No. 4 of
2008 once the Society of flat purchasers stands duly registered. It
is further contended that the period within which conveyance is
required to be executed is specifically prescribed under Rule 9 of
the MOFA Rules and the same cannot be extended under any
circumstances, much less at the instance of the promoter. It is
further the case that Respondent No. 2 Society had, on several
occasions, called upon the petitioners to execute conveyance of the
property in its favour. Communications in that regard were
addressed to the petitioners/promoters on 16 September 2012, 4
October 2012, 14 October 2012, 14 September 2013, 12 January
2014, 23 January 2014, 12 February 2014 and 12 April 2014. In
response thereto, the petitioners are stated to have repeatedly
assured the Society that the Conveyance Deed would be executed,
as reflected from their letters dated 22 February 2013, 12 March
2013 and 9 February 2014. It is contended that at no point of time
did the petitioners assert that conveyance would not be executed
unless the entire project was completed. The Society is stated to
have extended full co-operation by furnishing all requisite
documents demanded by the petitioners. Further, in joint meetings
held between the Managing Committee of the Society and the
partner of the petitioners in April 2013, on 26 October 2013 and
on 14 December 2013, the petitioners allegedly reiterated their
assurance to execute conveyance in favour of the Society. It is
further contended that the sanctioned layout plan and brochure
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clearly demonstrate that the Respondent Society constitutes an
independent unit having separate amenities, independent access
and distinct facilities of its own. It is on the basis of such material
that the competent authority is stated to have allowed the
application preferred by Respondent No. 1.
4.Elaborating further, learned counsel submitted that Clause
16 of the agreement specifically contemplates common facilities
for all buildings within the project and, therefore, the same
necessarily presupposes that such facilities are to be enjoyed
jointly by all constituent buildings. It was contended that the
authorities failed to appreciate that facilities such as gutters,
sewerage lines, electrical cabling, gardens, internal roads and open
parking spaces are common amenities meant not merely for
Building No. L-6, but for all buildings constructed within the
layout. In such circumstances, according to the petitioners,
subdivision of the common amenities and open spaces is
impermissible. Reliance was also placed upon Clause 17 at page 11
and Clause 32 at page 16 of the agreement between the parties to
submit that Respondent No. 2 ought to have rejected the
application filed by Respondent No. 1. It was argued that the
recitals contained in the agreement clearly indicate that a Federal
Society/Apex Body was intended to be formed for management of
common facilities, though the same has not yet been constituted.
Consequently, the application filed by Respondent No. 1 was
premature and ought not to have been entertained. It was further
submitted that Respondent No. 2 failed to appreciate that the
common facilities and common open spaces pertain to the entire
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sanctioned layout and are not restricted only to Building No. L-6. It
was lastly contended that the certificate relied upon by Respondent
No. 1 ought not to have been accepted by Respondent No. 2, as the
same contains factual inaccuracies and is based on an outdated
layout dated 12 July 2006, whereas the final revised layout
sanctioned on 30 October 2010 ought to have been considered. On
that basis also, it was contended that the application deserved
rejection. Learned counsel further submitted that in view of the
aforesaid contractual stipulations, the certificate issued by Unison
Architects could not have been relied upon, as the same fails to
take into consideration several mandatory and relevant aspects. It
was contended that the sanctioned layout of the entire project is
subject to revision from time to time depending upon
developmental requirements, changes in applicable laws, rules,
regulations, and variations in FSI/FAR/TDR available to the
builder till completion of the project. According to him, the latest
revised sanctioned layout for Balwantpuram is layout bearing No.
CC/2549/2010 dated 30 October 2010, whereas the applicant has
annexed an earlier layout bearing No. 3207/2006 dated 7
December 2006. It was submitted that the certificate issued by the
said Architect does not disclose the sanctioned layout or building
permissions relied upon while calculating the area mentioned
therein, particularly the proportionate area proposed to be
conveyed to the applicant society. It was further submitted that the
certificate is unsupported by any affidavit of the Architect
explaining the basis thereof, nor does it enclose copies of
documents relied upon for preparation of the certificate. It was
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additionally contended that the certificate does not disclose
whether the Architect had verified if the entire project under the
sanctioned layout had been completed, despite the Architect being
fully aware that multiple societies exist on the same layout.
According to the petitioners, unless the entire project is completed,
proportionate plot area attributable to any one building or scheme
cannot be accurately calculated, and therefore the certificate
issued by Unison Architects is erroneous, illegal and incapable of
being relied upon. It was thus contended that the area proposed to
be conveyed, namely 14,935.49 square metres, is incorrect and
incapable of ascertainment at this stage. It was further argued that
no open space beyond the land beneath the applicant’s building
can be conveyed, since the same forms part of the entire
Balwantpuram project and the applicant society and its members
possess merely a right of access thereto. Learned counsel
submitted that the applicant society was fully aware of all revised
sanctioned plans, as copies thereof were supplied at the time of
formation of the society. Despite this, the applicant failed to obtain
certification from the project architect and instead procured a
certificate from an outside architect with mala fide intent in
support of its allegedly untenable claim. It was therefore
contended that deemed conveyance could not have been granted
on the basis of such certificate.
5. In Writ Petition No. 10210 of 2013 Petitioner submitted that
the total plot area of the larger layout measures 1,37,510 square
metres, out of which the net plot area is 97,322 square metres. It
was further submitted that the total permissible FSI available is
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1,19,156 square metres, the permissible Transferable Development
Rights admeasure 62,707.60 square metres, and the total FSI
potential of the plot aggregates to 1,81,863.60 square metres. He
submitted that the built-up area of Shefalika Heights is 13,226.81
square metres, whereas the ground coverage area beneath the
buildings comprising Shefalika Heights measures 3,311.22 square
metres. He further submitted that various commencement
certificates and occupancy/completion certificates were issued in
respect of the several buildings forming part of the larger project.
In that regard, it was pointed out that Building Nos. L-1 and L-2
comprising Wings C, D and E received Commencement Certificates
bearing Nos. CC/6551 dated 11 August 2000 and CC/5348 dated
3 December 2002, and Completion Certificate No. BCO/231 dated
18 January 2003. Likewise, Building No. L-3 comprising Wings A
and B received Commencement Certificates bearing Nos. CC/6705
dated 10 May 2000, CC/5657 dated 29 March 2001 and CC/5349
dated 4 December 2002, along with Occupancy Completion
Certificate No. BCO/230 dated 18 January 2003. Similar approvals
and certificates were also issued for Building No. L-4, Building A-7,
Building M and Building B-1, details whereof have been set out to
demonstrate that construction and occupation of various buildings
within the project has taken place over a substantial period of
time.
6.Mr. Joshi, learned counsel appearing for the petitioner in
Writ Petition No. 64 of 2014, submits that Respondent No. 2 has
committed a manifest error in failing to properly appreciate the
terms and conditions of the agreement executed by Respondent
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No. 3 in favour of Respondent No. 1, which, according to him,
clearly records that there exists a single sanctioned layout
governing the entire Balwantpuram project. He submits that the
agreements executed by Respondent No. 3 both in favour of the
petitioner and Respondent No. 1 specifically provide that the
common areas including roads, parking spaces, open grounds, and
other common amenities are to remain common and available for
the benefit of all societies within the project. On the strength of the
said stipulations, it is contended that Respondent No. 1 is not
legally entitled to secure exclusive deemed conveyance in respect
of such common areas in its individual favour. He further submits
that Respondent No. 1 Society has already erected fencing
surrounding its buildings and that the petitioner has been
informed that Ornate Park Society is also desirous of obtaining a
similar order of deemed conveyance. According to him, if such
conveyances are permitted in favour of the individual societies, the
petitioner-society would effectively become landlocked and would
be deprived of lawful access to the property as a matter of right. It
is further contended that since development of original Plot No.
101/1/A was undertaken in a phased manner, the common
amenities, open spaces, and internal roads forming part of the
larger layout cannot be conveyed exclusively in favour of
Respondent No. 1 alone. Learned counsel further submits that
Respondent No. 2 has failed to consider that the total area beneath
the structures of Respondent No. 1 Society is only 3,529.61 square
metres and, therefore, Respondent No. 1 is not entitled to claim
any area in excess thereof as sought in its application and as
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ultimately granted by Respondent No. 2.
7.Per contra, Mr. Deshpande, learned counsel appearing for
Respondent No. 1, submitted that the stand of the petitioners that
conveyance would be executed only in favour of an Apex Society
to be formed upon completion of the entire project is contrary to
Clauses (1) to (5), (8) to (13) and (22) of the prescribed Model
Form Agreement, which clauses are mandatory in nature. He
submitted that under the Model Agreement, conveyance is
required to be executed within a period of four months, which is in
consonance with Rule 9 of the MOFA Rules. It was further
contended that in terms of Section 6(v) of Maharashtra Act No. IV
of 2008, if any dispute exists regarding the area liable to be
conveyed, the same is capable of resolution by the Sub-Registrar
competent to register the conveyance. It was submitted that at the
time of registration of the society, the builder/promoter is required
to disclose the area to be occupied by the society and, therefore,
once such disclosure is made, no dispute ought to survive
regarding the area to be conveyed. Learned counsel further
submitted that the Competent Authority, while exercising powers
under Section 11(4) of MOFA, has issued a certificate of deemed
conveyance in favour of Respondent No. 1 Society granting
conveyance of a specified area of land carved out on the basis of a
recognised formula, together with proportionate share in common
amenities available on the layout and built-up area admeasuring
13,226.81 square metres. It was submitted that there is no dispute
regarding the built-up area, as the same figure is reflected in the
certificates issued by both the Architect appointed by the Society
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and the Architect engaged by the builder. According to him, the
Competent Authority has correctly taken into account the area of
common amenities, and the marginal variation therein arises solely
due to discrepancies in the certificate furnished by the builder’s
Architect. It was submitted that the Competent Authority has
assessed the proportionate share of the Society in the total layout
land on the basis of the formula, namely: Total Built-up Area /
Total Sanctioned Area × Net Plot Area = Proportionate Area of
Society. Applying the said formula to the relevant figures, it was
submitted that the proportionate area of the Society comes to
11,349.86 square metres.
8.It was submitted that the Competent Authority, in Clause 3 at
page 2 of the order granting deemed conveyance, has duly
considered the figures relating to amenities, open spaces and other
relevant areas in a manner consistent with the aforesaid formula.
Hence, according to Respondent No. 1, no error whatsoever can be
attributed to the Competent Authority in assessing the area
incorporated in the certificate of deemed conveyance. Learned
counsel further submitted that presently six housing societies have
been formed and are functioning on the said layout in phases
between the years 2002 and 2012. It was pointed out that one
such society, namely Ornate Park CHS Ltd., had filed Consumer
Complaint No. 98 of 2004 before the District Consumer Forum,
Pune and had obtained an order directing conveyance against the
builder, which order has attained finality and remains
unchallenged. It was further stated that execution proceedings
initiated at the behest of the said society are presently pending. It
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was also submitted that another society on the same layout,
namely Balwantpuram Samrajya CHS Ltd. (L-6), had similarly filed
proceedings under Section 11 of MOFA before the Competent
Authority, which application was allowed, and pursuant thereto a
conveyance deed was executed in favour of the said society on 30
June 2015.
9.Learned counsel submitted that construction on the said
layout commenced in or about 1998–1999 and, since then, the
builder has sold flats and caused formation of six housing societies,
all of which are presently functioning. It was contended that
despite lapse of more than nineteen years, the builder asserts that
construction of the entire layout remains incomplete. According to
Respondent No. 1, no construction activity has taken place after
the year 2007 and no development is presently underway. It was
submitted that if the builder’s contention is accepted, the project
may take several further decades to be completed, thereby
frustrating the very object underlying Section 11 of MOFA. It was
thus contended that the plea of postponing conveyance until
completion of the entire layout and constitution of an Apex Body is
merely a pretext adopted to deprive Respondent No. 1 Society of
its lawful entitlement to conveyance.
10.Learned counsel further submitted that Government
Resolution dated 22 June 2018 issued by the Co-operation
Department, State of Maharashtra, squarely applies to the facts of
the present case. It was contended that the said Government
Resolution takes into consideration twelve earlier Government
Resolutions on the subject of deemed conveyance and, as
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explained in paragraph 2 Clause VI(1) thereof, was specifically
issued to address situations where the entire project is incomplete
but certain buildings therein have been completed and occupied by
flat purchasers. Since the petitioners themselves have admitted in
the affidavit in rejoinder that the project remains incomplete, it
was submitted that the said Government Resolution is directly
applicable. It was further contended that the same is in
consonance with the object and purpose of MOFA.
11.In Writ Petition No.8953 of 2015 Society submitted that the
layout plan sanctioned by the Pune Municipal Corporation vide
Commencement Certificate No. CC/4169/10 dated 14 March 2011
formed the basis for grant of deemed conveyance in favour of the
respondent society in the year 2015 under Section 11 read with
Rule 9 of MOFA. It was submitted that all area calculations and
entitlements were determined strictly in accordance with the
sanctioned plan. He further submitted that the deemed conveyance
certificate dated 27 February 2015 culminated in registration of
the deemed conveyance deed on 30 June 2015. As per the
sanctioned plan, the total plot area admeasures 1,37,510 square
metres; the ground coverage area of the society is 1,799.51 square
metres; the built-up area of Balwantpuram Samrajya L-6 (H, I, J,
K) CHS is 17,363.39 square metres; the common open space area
is 12,236 square metres; the common amenity area is 6,118 square
metres; and construction, if any, on total open space covers
1,835.40 square metres. It was further submitted that the
Competent Authority, after due verification of all relevant records
and documents, was pleased to register the deemed conveyance by
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determining the proportionate plot area transferred to the Society
as 14,935.49 square metres, calculated on the basis of the
prescribed formula. The built-up area of the Society was
accordingly taken as 17,363.39 square metres.
12.Learned counsel additionally submitted that the petitioners
have not undertaken any development on the said layout since the
year 2011. In such circumstances, the respondent society cannot
be compelled to wait indefinitely for completion of the entire
project. It was urged that the statutory right of conveyance cannot
be made contingent upon uncertain and delayed future
development at the discretion of the builder.
13.In Writ Petition No.10210 of 2013 society submitted that the
layout plan sanctioned by the Pune Municipal Corporation vide
Approval No. 0862/06 dated 5 June 2006 formed the basis for
grant of deemed conveyance in favour of the respondent society by
order dated 14 October 2013 issued under Section 11 read with
Rule 9 of MOFA. It was submitted that all area calculations and
entitlements were determined strictly in accordance with the
sanctioned plan.
14.He submitted that as per the sanctioned plan, the total net
layout area measures 1,02,247.25 square metres, the total
sanctioned area is 1,19,156 square metres, and the built-up area of
Shefalika Heights is 13,226.81 square metres. It was further
submitted that the Competent Authority, after due verification of
all relevant documents and records, granted deemed conveyance
in favour of the respondent society by determining land area of
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11,349.86 square metres on proportionate basis by applying the
formula 13,226.81 × 1,02,247.25 / 1,19,156 = 11,349.86. It was
also determined that the proportionate undivided share area
amounts to 20,112.75 square metres corresponding to the built-up
area of the society. It was lastly submitted that the petitioners have
not carried out any development on the said layout since the year
2010. Therefore, the respondent society cannot reasonably be
expected to wait indefinitely for completion of the entire project. It
was further submitted that the respondent society, being merely
one of the several societies situated within the larger layout, does
not possess access to all records pertaining to the entire
development and is, therefore, not in a position to furnish the
same.
REASONS AND ANALYSIS:
15.I have bestowed consideration to the rival submissions
canvassed by the learned counsel appearing for the respective
parties. The controversy involves adjudication in the backdrop of
the statutory obligations imposed upon the promoter under the
scheme of MOFA, the contractual documents executed inter se
between the parties, the sanctioned layout plans governing the
development, and the limitations governing the exercise of
supervisory jurisdiction by this Court under Articles 226 and 227
of the Constitution of India.
16.The first submission advanced on behalf of the petitioners is
until the final phase of the entire project reaches completion, no
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society can demand conveyance of its proportionate land or rights
therein. However, I am unable to accept the aforesaid submission
urged by the petitioners. The statutory scheme under the
Maharashtra Ownership Flats Act does not permit a promoter to
indefinitely postpone or defer his statutory obligation of
conveyance merely because certain other phases or portions of a
development remain yet to be constructed. The statutory duty cast
upon the promoter is mandatory and cannot be made contingent
upon the developmental schedule of the promoter. The obligation
to convey is not left to the discretion of the builder. Once a co-
operative housing society stands duly registered and the building
in question is complete and occupied by the flat purchasers, the
promoter becomes duty-bound in law to execute conveyance of the
land and building, along with the proportionate undivided rights
and interests appurtenant thereto, within four months from the
date of registration. To permit the promoter to indefinitely retain
title until completion of the entire project would amount to
permitting the promoter to frustrate the legislative intent
underlying MOFA. The very object and purpose of the enactment is
to secure and protect flat purchasers from unreasonable delay,
uncertainty, and withholding of title documents by promoters after
sale and possession of flats. Therefore, the proposition advanced
by the petitioners, though perhaps commercially convenient from
the promoter’s standpoint, runs contrary to the legislative object
and spirit of the enactment.
17.This court in similar facts in case of One Astoria
Cooperative Housing Society Federation Limited Versus Peninsula
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Land Limited and Others 2026 SCC OnLine Bom 2059 held as
under:
“24. On completeness and prematurity. The issue raised by
the promoter that the project is incomplete and therefore
conveyance should wait needs careful examination. The
principles laid down in the decision in
Flagship
Infrastructure (P) Ltd.
v.competent authority 2025 SCC
OnLine Bom 1240
provide clear guidance. That judgment
dealt with a similar situation where the promoter attempted
to postpone conveyance by linking it to future development.
The same pattern appears in the present case. When those
principles are applied to the facts on record, the legal
position becomes straightforward and leaves little room for
doubt.
25.The first aspect concerns the reasoning found in para
32 of the said decision. In that case, as in the present one,
the promoter relied on future completion of the larger
project to justify delay. Here also, the promoter says that
since some part of the project or future development
remains, conveyance cannot be granted at this stage. This
argument does not withstand scrutiny. Rule 9 of the MOFA
Rules imposes a clear obligation. Once a cooperative society
is registered, the promoter must execute conveyance within
four months unless a definite and specific alternative period
is agreed. The law does not recognise vague or uncertain
events as valid reasons for postponement. Completion of
future phases, revised layouts or proposed developments are
uncertain matters. They depend on approvals, finances and
decisions that flat purchasers cannot control. Therefore, such
events cannot become conditions for delaying conveyance.
The respondents' submission, if accepted, would defeat the
statutory scheme itself.
26. The second aspect flows from para 33 of the judgment,
which explains the object behind Rule 9. MOFA is a welfare
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legislation. Its purpose is to protect flat purchasers who
invest their savings in homes and expect secure ownership.
The timeline in Rule 9 is a safeguard created to prevent
promoters from retaining control over land and common
areas long after flats are sold. In the present case, occupation
certificates have been issued. Purchasers are residing in their
flats for several years. Societies have been formed. If
conveyance is still postponed merely because some future
development is proposed, purchasers would remain without
clear title despite having fulfilled all obligations. Such a
situation would bring back the very uncertainty that MOFA
seeks to remove. Therefore, the Act must be interpreted in a
way that ensures certainty of ownership rather than
prolonging uncertainty.
27. The third aspect arises from para 34 of the judgment,
which interprets the word “period” in Rule 9. The word has
been understood in its ordinary meaning, that is, a fixed and
definite block of time. It cannot mean an open ended event.
In the present matter, the promoter's argument converts a
fixed statutory timeline into condition dependent on future
development. If such an interpretation is accepted, there
would be no real deadline at all. The promoter could
continue to hold title for years by merely showing that some
portion of development remains. Courts cannot permit such
a reading because it would amount to rewriting the statute
and undermining legislative intent.
28. The fourth aspect is equally important. The reasoning
in
Flagship Infrastructure makes it clear that private
arrangements or clauses in agreements cannot override
statutory obligations under MOFA. Even if any agreement
suggests that conveyance will be postponed till completion of
the entire township, such a clause cannot prevail over Rule
9. Statutory duties are mandatory and cannot be diluted by
contractual terms. The relationship between promoter and
flat purchaser is governed by the statute, and the promoter
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cannot contract out of those obligations. Therefore, reliance
on future development proposals or private clauses cannot
justify refusal to execute conveyance or refusal to issue a
certificate under Section 11(4)
29. The fifth aspect concerns application of these principles
to the present facts. The project consists of multiple
completed buildings. Occupation and completion certificates
exist. Cooperative societies have been formed. Purchasers are
in possession. The promoter did not execute conveyance
within the statutory period. In these circumstances, the
petitioners were fully justified in invoking Section 11(3) and
seeking issuance of certificate under Section 11(4). The
objection that the project is incomplete or that future
development is contemplated cannot legally defeat their
entitlement. Completion of the entire township is not a
precondition recognised by law.
30. The sixth aspect relates to common areas. This dispute
also becomes clear once the above principles are applied. If
promoters are permitted to delay conveyance on the ground
of future development, they would continue to retain control
over common spaces indefinitely. That would defeat the
rights of flat purchasers. Common areas shown in the
sanctioned plan form part of the rights sold to purchasers.
These areas must pass to the societies along with
conveyance. Future development cannot be used as a reason
to keep those areas outside the conveyance. At the same
time, the law recognises that future development may
proceed on portions specifically earmarked for that purpose
in the sanctioned plan. Such development, however, cannot
disturb or reduce common areas already promised and
shown in the approved layout.”
18.In view of the aforesaid settled legal position and the
pronouncements of Coordinate Benches of this Court, the objection
of the petitioners that the applications for deemed conveyance
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were premature because the larger project remains incomplete
deserves rejection. Once the society stands registered, the building
is complete and occupied, and the promoter has failed to execute
conveyance within the period contemplated under law, the society
acquires statutory entitlement to seek deemed conveyance. The
promoter cannot defeat such right by merely pointing to future
developmental intentions, incomplete construction, or proposed
formation of an apex body at some uncertain future point of time.
19.Considerable argument was advanced on behalf of the
petitioners regarding the architect’s certificate relied upon by the
respondent societies and the alleged errors contained in the
calculations therein. The petitioners contend that the said
certificate is defective inasmuch as it allegedly refers to an
outdated layout, fails to adequately disclose the basis of
calculations adopted therein, and does not sufficiently account for
revisions in the sanctioned development plan. It is further
contended that the figures of the area proposed to be conveyed are
inaccurate and that the Competent Authority ought not to have
acted upon such certificate while granting deemed conveyance.
20.In my considered opinion, these objections partake the
character of factual disputes regarding measurement, technical
calculations, and quantitative assessment of area. Such objections
do not furnish a valid ground for setting aside the entire
proceedings in exercise of writ jurisdiction. Even assuming for the
sake of argument that certain discrepancies or variations exist in
the figures reflected in rival certificates, the same would not, by
itself, establish manifest illegality, perversity, or jurisdictional error
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in the impugned order, as petitioner has remedy of filing civil suit.
The Competent Authority, while exercising jurisdiction under
Section 11 of MOFA, is required to examine the material placed
before it and make a prima facie assessment on the basis of
sanctioned plans, architect certificates, built-up area, and
proportionate entitlement.
21.Much emphasis was laid by the petitioners upon the
architect’s certificate relied upon by the respondent societies and
the alleged inaccuracies said to be contained in the figures
mentioned therein. It has been contended on behalf of the
petitioners that the said certificate is fundamentally defective
inasmuch as it proceeds upon an earlier layout plan, does not
clearly disclose the precise methodology or basis upon which the
calculations have been undertaken, and further does not
adequately account for the subsequently revised sanctioned plan
governing the project. It has also been urged that the area
proposed to be conveyed has been incorrectly computed and that
the Competent Authority committed serious error in acting upon
such certificate without undertaking deeper scrutiny. However,
upon careful examination of the nature of this objection, I find that
the same is essentially rooted in factual and technical disputes
concerning calculation, measurement, and architectural
assessment. Such objections, in their true character, pertain more
to quantitative variation and factual computation than to any issue
touching the legality of jurisdiction exercised by the authority.
Merely because rival figures are suggested or because one party
disputes the basis of measurement adopted by the architect, the
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same would not ipso facto vitiate the entire proceedings or render
the impugned order illegal. Even assuming that some discrepancy
or variation in the figures may exist, such variation by itself would
not establish any manifest illegality unless the discrepancy is so
fundamental as to destroy the very foundation of the
determination. The Competent Authority, while exercising powers
under Section 11 of the Maharashtra Ownership Flats Act, is not
expected to conduct a full-fledged civil trial or mathematical audit
of each technical figure. What is expected of such authority is that
it should examine the material placed before it, consider the
sanctioned plans, evaluate the built-up area and relevant
documents, and arrive at a practical and workable determination
regarding proportionate entitlement. Minor deviations in
measurement, or reliance upon one version of a sanctioned plan
rather than another, may at the highest invite correction or
clarification, but cannot by themselves become a basis to hold the
entire exercise void ab initio. To accept the petitioners’ contention
in such broad form would mean that every minor dispute of
measurement would frustrate the entire deemed conveyance
mechanism contemplated under the statute, which is neither the
object nor the intention of the law.
22.The Supreme Court in Arunkumar H. Shah v. Avon Arcade
Premises Coop. Society Ltd.,
(2025) 7 SCC 249 observed as under:
“
37.Our conclusions on the interpretation of sub-sections
(4) and (5) of Section 11 of the MOFA are as under:
…..
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(
ii) The competent authority, while following the
summary procedure, cannot conclusively and finally decide
the question of title. Therefore, notwithstanding the order
under sub-section (4) of Section 11, the aggrieved parties
can always maintain a civil suit for establishing their rights;
(
iii) The provisions of Section 11 are for the benefit of
the flat purchasers. In writ jurisdiction, the Court should not
interfere with the order granting deemed conveyance unless
the same is manifestly illegal. The writ court should
generally be show in interfering with such orders. The
reason is that, notwithstanding the order under Section
11(4), the remedy of aggrieved parties to file a civil suit
remains open; and ….…”
23.Coordinate Bench of this Court in Valentine Cooperative
Housing Society Ltd. Versus District Deputy Registrar, Cooperative
Societies and Others,
2026 SCC OnLine Bom 1833 assumes
significance while examining the present controversy. In the said
judgment, while relying upon the pronouncement of Supreme
Court in
Arunkumar H. Shah it is further laid down that the
jurisdiction exercised by the Competent Authority under Section
11 of MOFA is summary in nature. It has further been clarified that
the Competent Authority does not finally and conclusively
adjudicate disputed questions of title and that such issues remain
open to be agitated in properly constituted civil proceedings by the
aggrieved party. Most importantly, the Coordinate Bench has
reiterated that this Court, while exercising writ jurisdiction, ought
to interfere with orders of deemed conveyance only where
manifest illegality, perversity, or jurisdictional error is clearly
demonstrated. In the present case, the challenge raised by the
petitioners is fundamentally based upon their contention that a
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larger area ought to be retained, that the project remains
incomplete, or that conveyance should be postponed until
constitution of an apex body. These objections, at their highest,
raise disputes concerning extent of entitlement, timing of
conveyance, and technical assessment of area. Such disputes do
not, by themselves, establish manifest illegality or jurisdictional
infirmity in the order passed by the Competent Authority. Once the
authority has examined the documents, considered rival
contentions, and arrived at a reasoned determination, mere
disagreement with that determination cannot furnish sufficient
ground for interference under Articles 226 and 227.
24.The aforesaid pronouncements makes the legal position clear
that the jurisdiction exercised by the Competent Authority while
considering and granting deemed conveyance is only summary in
character and the same is not intended to operate as a final
adjudication upon disputed questions concerning title,
measurement, demarcation, or exact proprietary entitlement of the
parties. The Competent Authority, while acting under Section 11 of
the Maharashtra Ownership Flats Act, is not expected to undertake
a detailed trial for deciding complicated questions of ownership or
rival technical claims regarding exact extent of land. In the present
proceedings, the principal controversy which the petitioners seek
to raise is substantially regarding the precise extent of land area
liable to be conveyed and the correctness of the measurement and
formula adopted by the Competent Authority while arriving at the
proportionate entitlement of the respondent societies. In Writ
Petition No. 10210 of 2013, the petitioners contend that though
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the total plot area is 1,37,510 square metres and the net plot area
is 97,322 square metres, with permissible FSI of 1,19,156 square
metres and overall FSI potential of 1,81,863.60 square metres, the
built-up area of Shefalika Heights is only 13,226.81 square metres
with ground coverage of 3,311.22 square metres and, according to
them, the land area claimed by the said respondent society is
excessive, inflated, and not in accordance with proper calculation.
On the other hand, the respondent society asserts that by applying
the sanctioned layout and the accepted architectural formula, it is
lawfully entitled to proportionate land admeasuring 11,349.86
square metres together with undivided proportionate share of
20,112.75 square metres. Similarly, in Writ Petition No. 8953 of
2015, the petitioners dispute the determination by which
Balwantpuram Samrajya Society has been granted proportionate
plot area of 14,935.49 square metres based upon built-up area of
17,363.39 square metres, and contend that such area is excessive
and beyond the actual entitlement of the said society.
25.Thus, what becomes evident from the rival pleadings and
submissions is that the dispute between the parties is not one
touching upon inherent lack of jurisdiction in the Competent
Authority, nor is it a case where patent illegality apparent on the
face of record is demonstrated. The controversy concerns rival
claims regarding exact area, proportionate entitlement, technical
measurements, architectural calculations, and the extent of land
that should accompany the conveyance in favour of the societies.
Such questions are by their very nature mixed questions of fact
and technical evidence which require detailed examination of rival
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documents, scrutiny of architectural certificates, survey reports,
sanctioned plans, technical calculations, and oral and documentary
evidence which may be adduced by the parties. Such an elaborate
exercise cannot be conclusively undertaken in summary
proceedings before the Competent Authority under Section 11 of
MOFA, nor can the same be properly adjudicated in supervisory
writ jurisdiction under Articles 226 and 227 of the Constitution
where the scope of interference remains confined to jurisdictional
and manifest legal errors.
26.Having regard to the law laid down by the Supreme Court in
Arunkumar H. Shah HUF where the substantial grievance of the
petitioners is directed not against the competence of the authority
but against the precise quantum of area determined for
conveyance, and where the contention of the petitioners
essentially is that a lesser or different area ought to have been
granted than what has been awarded by the Competent Authority,
such dispute necessarily deserves to be relegated to a competent
Civil Court for full and substantive adjudication. The petitioners, if
so advised, are at liberty to institute appropriate civil proceedings
for establishing their alleged rights, for challenging the
measurements adopted, and for seeking adjudication regarding the
correct area, title, and extent of proprietary entitlement. However,
disputes of such factual, technical, and title-related character do
not constitute sufficient or permissible grounds for this Court to
invoke writ jurisdiction, so as to interfere with the impugned
orders granting deemed conveyance.
27.However, insofar as Writ Petition No. 64 of 2014 is
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concerned, a careful perusal of the impugned order dated 14
October 2013 itself makes the position sufficiently clear and leaves
no ambiguity in that regard. The said order specifically records
that the area comprising common amenities, internal roads, open
spaces, and other common portions forming part of the sanctioned
layout shall continue to remain undivided in nature and that
Respondent No. 1 Society has merely been granted an undivided
and proportionate right in such common areas by virtue of the
order of deemed conveyance. Thus, the Competent Authority has
not granted exclusive ownership or exclusive possessory rights
over the common amenities in favour of Respondent No. 1 so as to
deprive other societies or occupants from enjoying the same. The
nature of right conferred under the impugned order is only that of
proportionate and undivided interest in the common portions
appurtenant to the larger layout, which is consistent with the very
concept of common amenities in a multi-building housing project.
Therefore, the apprehension sought to be raised by the petitioner
in the said writ petition that the respondent society may claim
absolute and exclusionary rights over the roads, open spaces, or
common facilities does not appear to be borne out from the plain
language of the impugned order itself.
28.It is required to be noted that the grant of deemed
conveyance in favour of one society in respect of its proportionate
undivided interest in common areas does not operate so as to
extinguish or defeat similar rights of use, access, and enjoyment
available to other societies or occupants having lawful entitlement
in the same common areas. Merely because a society is granted
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deemed conveyance including proportionate undivided rights in
common portions, the same cannot be construed to mean that such
society acquires authority to exclude other lawful users or to
obstruct access to the common amenities. The legal consequence
of conveyance of undivided common area is only recognition of
proportionate proprietary interest therein, subject always to
corresponding rights of other stakeholders similarly situated.
Therefore, the fear expressed by the petitioner that grant of
deemed conveyance in favour of Respondent No. 1 may render the
petitioner landlocked or deprived of access is, at this stage, more
apprehensive than real and does not arise from the contents of the
impugned order itself.
29.Accordingly, for removal of any possible ambiguity and in
order to safeguard the rights of all concerned parties, it is clarified
that insofar as Writ Petition No.64 of 2014 is concerned,
conferment of deemed conveyance in favour of Respondent No. 1
in respect of the common area and undivided amenities shall not
in any manner preclude, restrict, or obstruct the petitioner in Writ
Petition No. 64 of 2014 from continuing to use, enjoy, and access
the said undivided common areas in accordance with law and
subject to its lawful entitlement. Needless to observe, the
respondent society shall not claim any exclusive possession or
exclusive right over such common amenities to the exclusion of the
petitioner or other similarly placed stakeholders having lawful
rights therein.
30.In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
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(i) Writ Petition No. 10210 of 2013, Writ Petition No.
8953 of 2015, and Writ Petition No. 64 of 2014 stand
dismissed;
(ii) Rule is discharged in all the writ petitions;
(iii) The impugned order dated 14 October 2013 passed by
Respondent No. 2 in Application No. 174 of 2013, which is
subject matter of Writ Petition No. 64 of 2014, is upheld;
(iv) The impugned order dated 14 October 2013 passed by
Respondent No. 2, which is subject matter of Writ Petition
No. 10210 of 2013, and the impugned order dated 27
February 2015 passed by Respondent No. 2, which is subject
matter of Writ Petition No. 8953 of 2015, are also upheld;
(v) It is clarified that insofar as Writ Petition No. 64 of
2014 is concerned, the conferment of deemed conveyance in
favour of Respondent No. 1 in respect of the common
amenities, road, open spaces, and undivided common areas
shall not preclude, obstruct, or restrict the petitioner therein
from using and enjoying the said undivided common areas in
accordance with law and subject to its lawful entitlement;
(vi) It is further clarified that grant of deemed conveyance
in favour of Respondent No. 1 in Writ Petition No. 64 of
2014 shall not be construed as conferring any exclusive
right, possession, or control upon Respondent No. 1 over the
common amenities and undivided common areas to the
exclusion of other persons or societies having lawful rights
therein.
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(vii) It is further clarified that dismissal of the present writ
petitions shall not preclude the petitioners from instituting
appropriate civil proceedings before the competent Civil
Court, if so advised, for adjudication of their claims relating
to title, precise area, measurement, proportionate
entitlement, or any other proprietary rights in respect of the
subject property;
(viii) In the event such civil proceedings are instituted, the
same shall be decided on their own merits and in accordance
with law without being influenced by any observations made
in the present judgment, save and except the findings on the
limited scope of writ jurisdiction;
(ix) There shall be no order as to costs.
(x) Pending interim applications, if any, stand disposed of
accordingly.
31.Considering the reasons assigned in the judgment and the
period of ad-interim order also in force for more than 12 years, the
ad-interim relief in Writ Petition No.10210 of 2013 is extended for
a period of four weeks from today.
32.It is made clear that extension of ad-interim relief shall not
be construed as expression on merits of the case of the petitioner.
(AMIT BORKAR, J.)
31
In a significant decision, the Bombay High Court recently dismissed three pivotal writ petitions (Writ Petition No. 64 of 2014, 8953 of 2015, and 10210 of 2013) that challenged orders granting **deemed conveyance** under the **Maharashtra Ownership Flats Act (MOFA)**. This ruling reinforces the statutory obligations of promoters and provides clarity for co-operative housing societies seeking their rightful property titles. These specific rulings, along with numerous others, are meticulously tracked and analyzed on CaseOn, highlighting their critical status in property law jurisprudence.
The core of these combined writ petitions revolved around two fundamental legal questions:
The Bombay High Court's decision was firmly anchored in the robust legal provisions of the Maharashtra Ownership Flats Act (MOFA), 1963, especially Section 11 and Rule 9, which mandate timely conveyance. The Court relied on established precedents to underscore its reasoning:
The petitioners, comprising builders and promoters, argued that conveyance should be postponed until the entire project was complete and an Apex Society was formed to manage common facilities like roads and open spaces. They claimed that individual conveyances would lead to complications, potentially leaving some societies landlocked.
The Court, however, rejected this argument. It reiterated that MOFA's statutory duty to convey is mandatory and cannot be contingent on uncertain future events or a promoter's developmental schedule. The legislative intent of MOFA is to protect flat purchasers from indefinite delays and secure clear title once a society is registered and buildings are occupied. To allow indefinite postponement would frustrate this core objective.
CaseOn.in offers 2-minute audio briefs that concisely summarize complex legal arguments and court decisions, providing legal professionals with quick and actionable insights into rulings like these, directly aiding in the analysis of promoter obligations and MOFA compliance.
The petitioners also challenged the accuracy of the architect's certificates used by the respondent societies, alleging outdated layouts, incorrect calculations, and excessive area claims. They contended that these discrepancies warranted the rejection of the deemed conveyance applications.
The High Court carefully considered these objections but held that such issues, primarily factual disputes concerning measurements, technical calculations, and quantitative assessments of area, do not constitute grounds for interference under its writ jurisdiction. The Competent Authority, in exercising its summary powers under MOFA, is expected to make a *prima facie* assessment based on available documents and sanctioned plans, not conduct a full-fledged civil trial or mathematical audit. Minor deviations or reliance on a particular plan version, unless fundamentally destructive to the determination, would not vitiate the entire proceeding.
A crucial aspect addressed in Writ Petition No. 64 of 2014 concerned the rights over common amenities. The Court clarified that the grant of deemed conveyance in favor of one society for its proportionate undivided interest in common areas does *not* confer exclusive ownership or possessory rights. It ensures that other societies and occupants with lawful entitlement can continue to use, enjoy, and access these common amenities without preclusion or obstruction. This clarification safeguards the shared nature of common facilities within a larger layout.
The Bombay High Court’s judgment firmly dismisses all three writ petitions, upholding the Competent Authority's orders granting deemed conveyance to the respondent societies. The Court decisively states that promoters cannot leverage ongoing project phases or the absence of an Apex Society to delay their statutory obligation to convey title. While acknowledging that petitioners raised disputes regarding the precise area and technical measurements, the Court underscored that these are factual contentions best adjudicated in a civil suit, rather than in summary writ proceedings. Importantly, the ruling clarifies that deemed conveyance of proportionate undivided interests in common areas does not grant exclusive rights, ensuring fair access for all rightful stakeholders.
This judgment is essential for legal professionals and students specializing in property law and real estate. It:
Disclaimer: All information provided in this article is for informational purposes only and does not constitute legal advice. Readers should consult with a qualified legal professional for advice on specific legal issues.
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