As per case facts, Respondent No.9 leased plots to Respondent Nos.6 and 7, with Respondent No.3 developing under an SRA Scheme, eventually forming the Petitioner cooperative society. When respondents failed ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.10220 OF 2025
Quantum Park Cooperative Housing
Society Limited, a society formed and
registered under the provisions of the
Maharashtra Cooperative Societies
Act, 1960, having address at
CTS No.D/1084(PT)/B/2/A, Union Park,
Village Bandra, Khar (West),
Mumbai 400 052. … Petitioner
V/s.
1.AHCL-PEL,
A limited liability partnership
registered under the provisions of
the Limited Liability Partnership
Act, 2008,
Registered Office: 1, Rock Dale,
St. Sebastian Road, Near Mehboob
Studio, Bandra (West),
Mumbai 400 050
2.Innovative construction Private
Limited, a private limited
company incorporated under the
Companies Act, 1956,
Registered office: 1st Floor, Samir
Complex, St. Andrews Road,
Bandra (West), Mumbai 400 050
3.Ace Housing & Constructions Ltd.,
(formerly Capricorn Construction
Limited), A company incorporated
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.02.24
11:59:46 +0530
wp10220-2025-J.doc
under the provisions of the
Companies Act, 1956
Registered Office: 1, Rock Dale,
St. Sebastian Road, Near Mehboob
Studio, Bandra (West),
Mumbai 400 050
4.Patel Engineering Limited,
A company incorporated under the
provisions of Companies Act, 1956
Registered office: Patel Estate,
Jogeshwari (West), Mumbai 400 102
5.Rajat Patel,
Age: Adult, Occupation: Business,
Residence at: 27, Raj Hem,
V.M. Road, JVPD Scheme,
Mumbai 400 056
6.Khar Gulab Nagar Jaihind Coop.
Housing Society, a society
registered under the provisions of
the Maharashtra Cooperative
Societies Act, 1960,
registered office: CTS No.1084 (pt),
Village Bandra, Bandra (West),
Mumbai 400 050
7.Khar Gulab Nagar Trimurti Coop.
Housing Society, a society
registered under the provisions of
the Maharashtra Cooperative
Societies Act, 1960,
registered office: CTS No.1084 (pt),
Village Bandra, Bandra (West),
Mumbai 400 050
8.The Chief Executive Officer, Slum
Rehabilitation Authority,
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having office at 5th Floor, Griha
Nirman Bhavan, Bandra (East),
Mumbai 400 051.
9.Maharashtra Housing & Area
Development Authority, Grihnirman
Bhavan, Kala Nagar, Bandra,
Mumbai 400 051
10.District Deputy Registrar, Coop.
Societies (6), Mumbai
office at Grunnirman Bhavan,
Ground Floor, Section No.69,
Bandra (East), Mumbai 400 051
11.State of Maharashtra,
through AGP, Bombay High Court.… Respondents
Mr. Siddhesh Bhole with Ms. Maithili Jha and Mr.
Aryesh Gaje i/by SSB Legal Advisory for the petitioner.
Mr. Prashant P. Kulkarni for respondent No.1.
Mr. D.V. Deokar with Mr. D. Parikh i/by Parimal K.
Shroff & Co., for respondent No.2.
Mr. Shafi Sayed with Ms. Sunita Yadav i/by S.A.
Associates for respondent Nos.6 and 7.
Ms. Aarushi Yadav with Mr. Aatish Jayade i/by Ms.
Ravleen Sabharwal for respondent No.8-SRA.
Mr. Satyajeet P. Dighe for respondent No.9-MHADA.
Smt. S.D. Chipade, AGP for respondent Nos.10 and 11-
State.
CORAM :AMIT BORKAR, J.
RESERVED ON :FEBRUARY 2, 2026.
PRONOUNCED ON:FEBRUARY 24, 2026
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JUDGMENT:
1.The petitioner has invoked supervisory jurisdiction of this
Court under Article 227 of the Constitution of India to assail the
Judgment and Order dated 13 April 2022 passed by respondent
No.10. By the said order, the application preferred by the
petitioner society under Section 11(3) of the Maharashtra
Ownership Flats Act, 1963 was rejected.
2.The facts giving rise to the present petition are as follows.
Respondent No.9 was the owner and lessor of two contiguous plots
situated at Bandra, Danda Khar West, Mumbai 400052. The first
plot originally bore CTS No.D 1084 admeasuring approximately
2983.25 square meters. The second plot originally bore CTS No.D
1804 admeasuring approximately 3576.70 square meters.
3.By two separate lease deeds, both dated 7 February 1991,
respondent No.9 demised the first property in favour of respondent
No.6 and the second property in favour of respondent No.7.
Thereafter, under two distinct Development Agreements dated 19
August 1997 and 17 September 1997 executed between
respondent Nos.6 and 7 on one hand and respondent No.3 on the
other, respondent No.3 was appointed as developer under the
Slum Rehabilitation Authority Scheme. Respondent No.3
undertook to provide alternate accommodation to the occupants
and members of respondent Nos.6 and 7 and was granted the right
to utilize the balance FSI in accordance with the agreed terms.
Necessary permissions and a Letter of Intent were granted by
respondent No.8 upon applications submitted by respondent No.3.
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4.Respondent No.3 thereafter entered into a partnership with
respondent No.4 and constituted a partnership firm known as
AHCL PEL, arrayed as respondent No.1. A Memorandum of
Understanding dated 31 July 2001 was executed between
respondent No. 1 and respondent No.2. Under the said
arrangement, respondent No.2 was entrusted with the
development of the property by utilizing 7918.54 square meters of
FSI as per the Letter of Intent dated 19 February 1998, together
with an additional ten percent balcony area and such other
permissible areas, for construction of a building comprising stilt
and twelve upper floors and any further additional area that might
become available.
5.Subsequently, four Inter se Promoters Agreements dated 5
November 2001, 9 September 2002, 20 November 2003 and 7
December 2007 were executed between respondent Nos.1 and 2.
These agreements recorded the detailed terms governing the
development of the larger property and conferred development
rights, including the right to construct residential buildings. In
discharge of its obligations under the earlier Development
Agreements dated 19 August 1997 and 17 September 1997,
respondent No.1 completed construction of three buildings
comprising ground plus seven floors for rehabilitation of the
members and occupants of respondent Nos.6 and 7.
6.It was subsequently noticed that the actual areas of the first
and second properties were larger than originally recorded.
Respondent Nos.1 to 5, acting as promoters, procured rectification
of the areas in the revenue records as well as in the records of the
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Slum Rehabilitation Authority in order to avail the benefit of the
additional area for development. The first property, the second
property and portions thereof, collectively referred to as the third
property, came to be treated together as the larger property.
7.Upon actual measurement of the larger property, it was
found that there existed an additional area of 626.2 square meters
over and above the earlier recorded area of 6565.2 square meters
as per the survey conducted by the City Survey Officer, Bandra and
reflected in M.R. Plan No. C office 2K CTS Vashi 949 of 2003 dated
13 February 2004. A No Objection Certificate was also issued
permitting inclusion of the additional 656.2 square meters in the
Slum Rehabilitation Scheme.
8.By order dated 20 May 2004 bearing No. SRA CSP DIV Z 04,
respondent No.8 granted permission for amalgamation and
subdivision of the larger property. Approval was also granted for
corresponding changes in the City Survey Records and Property
Register Cards and for issuance of separate property cards.
9.Pursuant to such subdivision, the Slum Rehabilitation
Component comprised CTS No.D 1084 B 1 ad-measuring
approximately 2978.50 square meters and CTS No.D 1084 B 2
admeasuring approximately 4242.90 square meters. CTS No.D
1084 B 2 was further subdivided into CTS No.D 1084 B 2 A
admeasuring approximately 3635.4 square meters, CTS No.D 1084
B 2 B admeasuring approximately 228.5 square meters, CTS No.D
1084 B 2 C admeasuring approximately 353.5 square meters and
CTS No.D 1084 B 2 D admeasuring approximately 25 square
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meters.
10.Respondent Nos. 1 to 5 thus became entitled to the leasehold
interest in the land together with the right to construct residential
buildings in accordance with the sanctioned built up area. In terms
of the sanctioned layout, requisite approvals and the Inter se
Promoters Agreements, respondent Nos.1 to 5 constructed at their
own cost two residential buildings known as Quantum Park, each
comprising basement plus stilt plus thirteen upper floors with two
wings designated as Wing A and Wing B.
11.Respondent Nos.1 to 5 thereafter entered into registered
agreements for sale with various purchasers in respect of flats in
the said buildings in accordance with Section 4 of the Maharashtra
Ownership Flats Act and the Rules framed thereunder. The
consideration amounts were received, and the agreements were
duly registered under the Registration Act, 1908.
12.Upon handing over possession of the flats, respondent Nos. 1
and 2 caused formation and registration of a co-operative housing
society in the name of Quantum Park Co operative Housing Society
Limited under the provisions of the Maharashtra Co operative
Societies Act. The society was registered on 24 August 2010 with
the office of the Deputy Registrar, Co operative Societies, H W
Ward, as required under Section 10 of the Maharashtra Ownership
Flats Act. The office bearers of the petitioner society assumed
charge of the management of the land and buildings, which are
presently in its possession.
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13.As the respondents failed to execute the conveyance of the
land despite receipt of a legal notice, the petitioner was
constrained to file Application No.127 of 2021 under Section 11 of
the Maharashtra Ownership Flats Act before the Competent
Authority, namely respondent No.10, seeking unilateral deemed
conveyance in its favour.
14.Upon issuance of notice, respondent Nos.1, 6 and 7 appeared
and filed their replies. The Competent Authority, after hearing the
parties and perusing the material on record, by order dated 22
April 2022 rejected Application No.127 of 2021.
15.The Competent Authority rejected the application on the
ground that the area sought to be conveyed, namely 4242.90
square meters, exceeded the area allegedly admissible to the
society, stated to be 3635.10 square meters. The impugned order
further records that the petitioner may file a fresh application after
disposal of Suit No. 419 of 2018 instituted by the society and Suit
No.1037 of 2018 instituted by certain members. The subject
matter of the said suits concerns the alleged illegality of the 13th
and 14th floors of the building. The pendency of those suits, which
relate to the legality of certain floors, does not operate as a legal
bar to consideration of an application for deemed conveyance. The
issues involved in the said suits are distinct and have no direct
bearing on the petitioner’s statutory entitlement under Section 11
of the Act.
16.Mr. Bhole, learned counsel for the petitioner contends that
respondent No.10 failed to take into consideration the fact that an
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additional area of 656.2 square meters was subsequently included
in the larger property. This inclusion, according to him, is borne
out by the communication dated 13 February 2004 issued by the
District Officer, Mumbai Suburban District bearing No. C Office 2K
CTS Vashi 949 of 2003, addressed to the Chief Executive Officer of
the Slum Rehabilitation Authority, whereby a No Objection
Certificate was granted for incorporation of the said additional
area. It is further submitted that respondent No. 10 did not
appreciate that the buildings of the petitioner society form part of
the Free Sale Component bearing CTS No. D 1084 B 2
admeasuring 4242.90 square meters. The said Free Sale
Component was thereafter subdivided into four parts, namely CTS
No. D 1084 B 2 A admeasuring approximately 3635.4 square
meters, CTS No. D 1084 B 2 B admeasuring approximately 228.5
square meters, CTS No. D 1084 B 2 C admeasuring approximately
353.5 square meters and CTS No. D 1084 B 2 D admeasuring
approximately 25 square meters. Learned counsel submits that
respondent No. 10 erred in law in overlooking the settled legal
position that an order directing execution of deemed conveyance
does not finally determine or adjudicate the right, title and interest
of the parties. Any person aggrieved by such conveyance retains
the liberty to institute appropriate proceedings before the
competent Civil Court.
17.It is further contended that the limited scope of enquiry
before respondent No. 10 was confined to determining the area
liable to be conveyed to the petitioner society. Instead, respondent
No. 10 exceeded the bounds of jurisdiction by taking into
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consideration disputes of a civil nature pending between the
parties, which were extraneous to the proceedings under Section
11 of the Act. Learned counsel also submits that respondent No. 10
failed to consider the Agreement for Sale dated 5 September 2017
annexed as Exhibit C to the application. The said agreement,
executed between respondent No. 1 and a flat purchaser, records
in recital S that Wing A and Wing B of the petitioner society have
been constructed on the property described as IRDLY in the First
Schedule thereto. The description of IRDLY in the First Schedule
corresponds to the property admeasuring 4242.9 square meters,
being the very land on which the petitioner society’s buildings
stand. It is further submitted that even assuming a dispute
regarding the larger extent of land, respondent No. 10 ought to
have granted deemed conveyance at least in respect of the lesser
area of 3635.90 square meters instead of rejecting the application
in its entirety.
18.On the aforesaid premises, it is urged that this Court may
direct respondent No. 10, the District Deputy Registrar, Co
operative Societies, Mumbai, to issue a certificate under Section 11
of the Maharashtra Ownership Flats Act in respect of unilateral
deemed conveyance of land bearing CTS No. D 1084 B 2 A
admeasuring 3635.4 square meters situated at Bandra Danda,
Khar West, Mumbai 400052, together with the two multistoried
buildings known as Quantum Park Wing A and Wing B comprising
basement, stilts and fourteen upper floors.
19.Mr. Deokar learned counsel for respondent No. 2 submits
that the erstwhile respondent No. 2, now Innovative Construction
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Private Limited, initially constructed two wings of the building
known as Quantum Park, namely Wing A and Wing B, each
consisting of twelve floors, in accordance with plans approved by
the Slum Rehabilitation Authority. An Occupation Certificate in
respect thereof was issued by the Slum Rehabilitation Authority on
10 April 2003. It is further submitted that plans were subsequently
approved for construction of the thirteenth floor in both Wing A
and Wing B. Construction of the said thirteenth floors was carried
out by the erstwhile respondent No. 2, and an Occupation
Certificate dated 18 July 2006 was issued. As per the Occupation
Certificate plans of the said date, the FSI approved for the
thirteenth floor in Wing A was 279.23 square meters and in Wing
B was 197.03 square meters. Learned counsel submits that the
fourteenth floor in Wing B has not been constructed to date. The
FSI of 147.33 square meters, which according to respondent No. 2
pertains to the proposed fourteenth floor of Wing B, has been
unlawfully diverted by respondent Nos. 1, 3 and 4 to flats
constructed on the thirteenth and fourteenth floors of Wing A
pursuant to a Commencement Certificate dated 12 January 2016.
The alleged deviations are set out as follows:
(i) The flats on the thirteenth floor of Wing A presently
comprise FSI of 337.87 square meters. Of this, only 279.23
square meters is stated to belong to respondent Nos. 1, 3 and
4 as per the sanctioned plans dated 31 July 2010 and the
Occupation Certificate plans dated 17 January 2012. The
balance FSI of 58.64 square meters is alleged to have been
unauthorisedly transferred from the FSI of 147.33 square
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meters claimed by respondent No. 2 for Wing B.
(ii) The flats on the fourteenth floor of Wing A presently
comprise FSI of 296.49 square meters. Out of this, only
209.94 square meters is stated to be sanctioned in favour of
respondent Nos. 1, 3 and 4 as per the approved plans dated
31 July 2010 and the Occupation Certificate plans dated 17
January 2012. The excess FSI of 86.55 square meters is
alleged to have been diverted from the FSI claimed by
respondent No. 2.
(iii) It is thus contended that the total FSI of 147.33 square
meters claimed by respondent No. 2 for construction of the
fourteenth floor in Wing B has been appropriated by
respondent Nos. 1, 3 and 4 by utilising 58.64 square meters
for additional construction on the thirteenth floor of Wing A
and 86.55 square meters for additional construction on the
fourteenth floor of Wing A.
(iv) Even the Occupation Certificate plans dated 25 April
2016, according to respondent No. 2, reflect that no
construction has been carried out on the fourteenth floor of
Wing B.
20.In view of the aforesaid, respondent No.2 has instituted
Commercial Suit No.178 of 2021 before this Court seeking, inter
alia, a declaration that the construction of the additional 58.64
square meters on the thirteenth floor of Wing A and 86.55 square
meters on the fourteenth floor of Wing A is illegal, invalid, and
contrary to the sanctioned plan dated 31 July 2010 as well as the
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Occupation Certificate plan dated 17 January 2012, together with
consequential reliefs against respondent Nos.1, 3, and 4. It is
therefore submitted that in view of the pendency of the said suit
filed by respondent No.2 and the observations made by this Court
while admitting flat purchasers of the thirteenth and fourteenth
floors of Wing A, any conveyance executed in favour of the
petitioner society ought to be made expressly subject to the final
outcome of the suit filed by respondent No. 2 as well as the suit
instituted by the petitioner society.
REASONS AND ANALYSIS:
21.I deal with the rival contentions, review the material on
record, and explain why the order of respondent No.10 dated 22
April 2022 cannot stand.
22.Respondent No.10’s stated reason for rejection was twofold.
First, the Authority recorded that the society sought conveyance of
4,242.90 square meters, a figure the Authority considered larger
than the society’s entitlement. Second, the Authority directed that
the society may file a fresh application after the pending civil suits
are decided. Both reasons are legally flawed.
23.On the first ground given by the Authority, the reasoning
does not stand scrutiny. The Competent Authority had before it
clear and specific documentary material. When such material is
available on record, the Authority is expected to read it carefully,
reconcile it, and then arrive at a reasoned conclusion about the
exact area that is liable to be conveyed. The record includes the
order passed by the Slum Rehabilitation Authority permitting
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amalgamation and thereafter subdivision of the larger property.
That order changes the manner in which the property stands
recorded in official records. It is followed by corresponding
changes in the city survey records and the property register cards.
The MR plan reflects the actual measurement on the ground and
records the additional area found during survey. These are official
acts carried out by competent authorities in exercise of statutory
powers. They form the foundation of title identification.
24.Once subdivision is approved and recorded, the original
larger CTS number ceases to remain a single indivisible parcel. It
breaks into distinct and separately identifiable parts. In the present
case, the Free Sale Component bearing CTS No.D/1084/B/2 was
further subdivided, and one such sub part is CTS No.D/1084/B/
2/A admeasuring about 3,635.4 square meters. The measurement
is not an approximation drawn by the society. It flows from survey
records and subdivision particulars maintained in official registers.
The Authority also had before it the Agreement for Sale and
registered sale deeds. Those documents are executed by the
developer itself. They describe the property in the First Schedule as
IRDLY. That description corresponds to the land on which the
buildings known as Wings A and B are constructed. The registered
documents tie the constructed buildings to a specific survey
identity. They are instruments registered under the Registration
Act. When the developer has represented to flat purchasers that
their building stands on a defined property, and possession has
been delivered accordingly, the Authority cannot ignore that
representation while deciding a statutory application under
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Section 11.
25.At the very least, the Authority was required to examine
whether the buildings of the society stand on CTS No.D/1084/B/
2/A. If the answer from the record is in the affirmative, then the
society’s entitlement to that sub parcel follows, subject of course to
other legal objections. Instead, the Authority appears to have
rejected the entire application on the footing that the society
sought conveyance of 4,242.90 square meters being the larger CTS
No. D/1084/B/2. That approach shows non application of mind.
When subdivision particulars are on record, the Authority must
separate the parcels and determine which parcel corresponds to
the society’s construction. It cannot treat the entire parent number
as a single block and reject the claim without analyzing its
components.
26.It is true that the Authority may scrutinise the area claimed.
It may correct clerical errors. It may even reduce the area if the
record supports a smaller entitlement. But what it cannot do is
avoid the exercise altogether. If the society claimed a larger area
than what the record justified, the Authority was duty bound to
identify the correct lesser area and grant conveyance accordingly.
The statute does not contemplate an all or nothing approach. It
requires the Authority to determine the area “to be conveyed”.
That necessarily involves quantification on the basis of existing
survey and subdivision records. By declining to isolate CTS No.
D/1084/B/2/A and by failing to test the claim against the MR
plan, the SRA order and the registered sale documents, the
Authority abdicated its statutory responsibility. The material on
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record was sufficient to at least prima facie establish that the
buildings stand on the subdivided parcel measuring about 3,635.4
square meters. Once that position emerged from official records
and contractual documents, the Authority ought to have proceeded
to grant conveyance in respect of that identified sub parcel. In
effect, the Authority treated the existence of subdivision as
irrelevant and rejected the application on a broad assertion
regarding total area. That reasoning cannot be sustained. The
exercise required was a careful identification of the correct CTS
sub number and its corresponding area. Had that exercise been
undertaken, the Authority would have found that the documentary
record supported conveyance of the admitted sub parcel. The
failure to do so vitiates the impugned order.
27.The second reason assigned by the Authority is equally
unsustainable. The mere pendency of civil suits cannot operate as
a blanket prohibition against exercise of statutory power under
Section 11 of MOFA. If that principle were accepted, any promoter
or contesting party could stall a deemed conveyance simply by
filing a suit and keeping it pending. The statute does not
contemplate such approach. It is necessary to see what the pending
suits actually concern. Suit No. 419 of 2018 and Suit No. 1037 of
2018, as well as Commercial Suit No. 178 of 2021, revolve around
allegations of irregular construction and improper utilisation of
FSI. The grievance of respondent No.2, in particular, is that certain
portions of FSI were diverted from one wing to another and that
additional construction on the 13th and 14th floors of Wing A was
carried out contrary to sanctioned plans. These issues relate to
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building permissions, sanctioned layouts, occupation certificates
and compliance with planning regulations.
28.Such questions require detailed examination of sanctioned
plans, commencement certificates, occupation certificates and
municipal records. They fall squarely within the domain of civil
adjudication. However, they do not, by themselves, alter the
identity of the land parcel on which the buildings stand. They do
not dispute that the buildings exist. They do not dispute that flats
were sold. They do not dispute that possession was handed over
and that the society was formed. The controversy is about how
much FSI was lawfully utilized and whether additional floors were
constructed in accordance with law. There is a clear distinction
between a dispute about the identity or ownership of the land and
a dispute about the manner in which construction was carried out
on that land. The documents on record, including the SRA order,
the survey plan and the subdivision particulars, consistently show
that the buildings stand on CTS No.D/1084/B/2/A. The registered
agreements for sale also describe the property accordingly. The
pending suits do not seek a declaration that the land belongs to
someone else or that the society has no connection with the said
sub parcel. They focus on alleged excess construction and
unauthorized FSI adjustments between wings.
29.An order of deemed conveyance under Section 11 does not
validate unauthorized construction. It does not certify that every
floor has been lawfully built. It merely transfers the promoter’s
right, title and interest in the land and building to the society,
subject to existing rights and liabilities. If a civil court ultimately
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holds that certain floors are illegal or that certain FSI has been
misused, appropriate directions can still be issued. The grant of
conveyance does not obstruct that process. By treating the
pendency of suits as a complete bar, the Authority effectively
expanded its jurisdiction beyond the statute. Section 11 requires
the Authority to decide whether the society is entitled to
conveyance of the land and building. It does not authorise the
Authority to sit in judgment over complex construction disputes
already pending before civil courts, nor does it permit indefinite
postponement on that ground alone. The reasoning in the
impugned order suggests that until all disputes between the parties
are finally resolved, no conveyance can be granted. Such an
approach defeats the very object of MOFA. The Act was enacted to
ensure that flat purchasers are not left at the mercy of promoters
and that conveyance of the property is not indefinitely delayed. If
pendency of any suit is treated as a sufficient reason to deny
conveyance, the statutory protection becomes illusory. In the
present case, the disputes pending before the civil court do not
strike at the root of the society’s entitlement to the identified sub
parcel. They relate to alleged deviations in construction and
allocation of FSI. Those issues can be examined and decided
independently. The Authority was therefore in error in assuming
that it lacked power to proceed under Section 11 merely because
such suits are pending. The law does not impose such a restraint.
The Authority misdirected itself in treating pendency of civil
litigation as a categorical bar to issuance of a certificate of deemed
conveyance.
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30.I consider the specific submissions of respondent No.2 about
FSI. Respondent No.2 says FSI of 147.33 square meters belonging
to it for the proposed 14th floor of Wing B was diverted to
construct additional area in Wing A. Respondent No.2 relies on
occupation certificate plans and alleges usurpation of FSI. Those
are serious factual contentions. They justify adjudication in a civil
forum. They do not, however, automatically extinguish the
society’s right to apply for deemed conveyance for the land parcel
on which buildings stand. The remedy for alleged FSI usurpation
lies in the civil suit which respondent No.2 has filed. That civil suit
will determine whether additional construction was lawful and
whether any corrective orders or adjustments are necessary. It will
not, however, convert the statutory duty of the Competent
Authority into a fact-finding mission on all civil disputes touching
constructional deviations. The Authority must confine itself to the
statutory criteria for Section 11. It must grant a certificate where
the society establishes its entitlement to the parcel on record and
possession, subject to civil rights being preserved.
31.The Agreement for Sale dated 5 September 2017 and recital
S merit attention. That document records that Wings A and B were
constructed on the property described as IRDLY in the First
Schedule. The First Schedule’s description corresponds to
D/1084/B/2/A. The Agreement is a contemporaneous commercial
document executed between the developer and a purchaser. It
supports the society’s claim that the wings occupy the subparcel
D/1084/B/2/A. It also shows that purchasers understood the
property they bought and took possession accordingly. The
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Authority should have placed appropriate weight on that
agreement along with survey records and SRA orders.
32.The Competent Authority must act in accordance with the
statute and the record. The facts here show that the society has
established, prima facie, its entitlement to CTS No. D/1084/B/2/A
admeasuring 3,635.4 square meters. The pending civil suits do not
negate that entitlement on the present record. The Authority’s
refusal to grant any relief, instead asking for a fresh application
after litigation, was unreasonable and legally unsustainable.
33.Hence, following order is passed:
(i) The writ petition is allowed.
(ii) The Judgment and Order dated 22 April 2022 passed
by respondent No. 10 in Application No. 127 of 2021 under
Section 11 of the Maharashtra Ownership Flats Act, 1963 is
quashed and set aside.
(iii) It is declared that the petitioner society is entitled to
unilateral deemed conveyance in respect of land bearing CTS
No. D/1084/B/2/A admeasuring approximately 3,635.4
square meters situated at Bandra Danda, Khar West, Mumbai
400 052, together with the buildings known as “Quantum
Park” Wing A and Wing B standing thereon.
(iv) Respondent No.10, being the Competent Authority
under Section 11 of the Maharashtra Ownership Flats Act,
1963, shall issue the certificate of unilateral deemed
conveyance in favour of the petitioner society in respect of
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the aforesaid property within a period of four weeks from
the date of receipt of a copy of this order.
(v) All rights and contentions of the parties in pending
suits, including Suit No. 419 of 2018, Suit No. 1037 of 2018
and Commercial Suit No. 178 of 2021, are kept open.
34.Rule is made absolute in the above terms. No order as to
costs.
(AMIT BORKAR, J.)
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