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2012 Supreme(Bom) 1646

S.C.DHARMADHIKARI
Mazda Construction Company – Appellant
Versus
Sultanabad Darshan CHS – Respondent


Advocates appeared:
For the Petitioners:Pravin Samdani, Senior Advocate a/w Samir Purohit i/by M/s Markand Gandhi & Company, Advocates.
For the Respondents:R1 & R2, Y.R. Mishra, Advocate, R4 & R5, Ms. P.S. Cardozo, AGP.

Judgement Key Points

Key Points: - The judgment discusses the role and limits of the Competent Authority under MOFA Sections 5A, 10 and 11 in issuing a unilateral deemed conveyance (!) (!) (!) (!) (!) . - It emphasizes that the deemed conveyance should reflect the entitlement as per the registered agreements with flat purchasers and documents referenced in Sections 3, 4, and 11, not broader or disputed common areas (!) (!) . - It holds that inclusion of disputed or contested areas such as gardens and certain access roads, when entitlement is in dispute, can vitiate the certificate and overstep the Authority’s limits; the order should be restricted to the land and buildings with clear entitlement, pending final civil adjudication (!) (!) (!) . - The court partially allows the writ petition, restricting the certificate to the defined land (CTS 356/16) while noting possible use of a garden/road area subject to rights and final civil court orders, and preserving rights of parties (!) . - The judgment explains the meaning of key terms "unilateral" and "deemed" and their constitutional/legal context to prevent arbitrary action by authorities (!) (!) (!) . - It asserts that the Competent Authority must verify authenticity of documents and provide a reasonable opportunity to be heard before certifying a deemed conveyance (!) . - It clarifies that the promoter's obligation is to convey title in accordance with the agreement; the deemed conveyance powers fill gaps when promoters fail to act, but must align with the agreements and documents (!) (!) (!) (!) .

How to determine the entitlement for unilateral deemed conveyance under MOFA Sections 5A, 10 and 11?

What is the scope of areas (land, gardens, internal access) that can form part of a deemed conveyance certificate?

How to ensure Competent Authority's certificate under Section 11(3)/(4) does not exceed the underlying agreements and pending litigation?


Judgment :

1 Heard.

2 Rule. The Respondents waive service. By consent, Rule is made returnable forthwith.

3 By this Writ Petition under Articles 226 and 227 of the Constitution of India, the Petitioners are challenging the order dated 11.04.2012, copy of which is at Annexure-A to the Writ Petition, by which the District Deputy Registrar, Co-operative Societies, Mumbai City-3 & Competent Authority under Section 5A of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, 1963 (for short “MOFA”), on an application bearing No.55/2011 has directed as under:-

“In exercise of the powers conferred on me under Section 5A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, I, S.P.Ghorpade, District Deputy Registrar, Co-operative Societies, Mumbai City (3), Competent Authority under Section 5A of the Maharashtra Ownership Flats Act, 1963,

1. certify under section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, that the Sultanabad Darshan Cooperative Housing Society Ltd., CTS No.356/16,














































































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