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HIGH COURT OF BOMBAY
AMIT BORKAR, J
NEELKANTH HEIGHTS COOPERATIVE HOUSING SOC AND ORS – Appellant
Versus
ABHINAV REAL ESTATE PVT LTD – Respondent
WP/165/2025
No. Rule 9 prescribes a fixed four-month period from registration of society for conveyance. Clauses tying conveyance to uncertain future events like full project completion are void as they override statutory protections for flat purchasers under MOFA. (Para 18 , 19 , 20 , 26 , 28 )
No. Once cooperative societies are validly formed and registered under MOFA and the MCS Act, they become juristic persons with independent decision-making powers. Multiple societies resolving to form a federal association does not require further ratification from the promoter. (Para 31 )
No. Neither the petitioner nor respondent No.1 is a party to the suit in which the status quo order was passed, so the order does not bind them. Additionally, the suit concerns redemption of mortgaged property and has no bearing on the statutory obligation under MOFA. (Para 32 )
No. The promoter's claim over unutilized FSI or TDR cannot justify refusal or delay of deemed conveyance. The prospect of future FSI utilization cannot block the statutory right of flat purchasers. TDR claims are ancillary and can be addressed separately through appropriate conditions in conveyance. (Para 25 , 35 )
Yes. The Architect's Certificate reflects proportionate share based on the final sanctioned plan. The petitioner is entitled to proportionate rights in reservations and TDR benefits. The respondent has not produced material to dispute the area calculation, and TDR utilization supports the proportionate claim. (Para 12 , 34 )
JUDGMENT.:
1. The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, challenging the legality, correctness, and propriety of the Judgment and Order dated 15th October 2024 passed by the Competent Authority, i.e., respondent No.6, in Application No.419 of 2024, filed under Section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 , commonly referred to as the MOFA Act. By the said order, the Competent Authority has rejected the application filed by the petitioners, who sought issuance of a certificate of unilateral deemed conveyance in relation to the property bearing Survey No.194/1B, situated at Village Maziwada, Pokharan Road No.3, Thane.
2. The petitioner is an Association of Cooperative Housing Societies, registered under the Maharashtra Cooperative Societies Act, 1960 , on 1st April 2022, and comprises three individual housing societies whose members are purchasers of flats constructed on the said property. Respondent No.1 is the promoter as defined under Section 2(c) of the MOFA Act. Respondent Nos.3 to 5 are the recorded owners of the land bearing Survey No.194/1B, ad-measuring 53,600 square meters. One Provident Investment Company Ltd., who had become the mortgagee in possession of about 52,609.19 square meters of the land pursuant to an Indenture dated 10th June 1938, executed a 99-year lease deed in favour of M/s. National Stone Quarry (respondent No.6), commencing from June 1963, at an annual rent of Rs. 3,600/-.
3. Thereafter, on 4th May 1995, M/s. National Stone Quarry entered into a development agreement with Abhinav Real Estate Private Limited concerning the said property. The said development agreement came to be supplemented by another agreement dated 11th January 2002, whereunder the rights and obligations of the parties were further elaborated and reaffirmed.
4. Based on these development agreements, the respondent No.1-promoter, undertook development of the land and constructed multiple buildings thereon. Specifically, buildings numbered 1 to 4 came to be named as Rameshwar CHS., comprising 212 flats and 29 shops; buildings numbered 5 and 6 as Mansarovar CHS., comprising 244 flats; and buildings numbered 7 and 8 as Girija CHS., comprising 284 flats. In totality, the promoter has developed eight buildings comprising 740 flats and 29 commercial shops.
5. Respondent No.1 executed registered agreements for sale with individual flat purchasers in accordance with Section 4 of the MOFA Act. Subsequently, the three societies came to be registered in 2004, 2005, and 2011 respectively. Despite such registration and the legal obligation under Rule 9 of the MOFA Rules, which mandates that the promoter shall execute the conveyance deed or assignment of lease within four months from the date of registration of the cooperative society, respondent No.1 failed to do so. The inaction of the promoter necessitated the three societies to come together and form a common Association of Societies on 1st April 2022 to take steps for obtaining conveyance.
6. In the General Body Meeting held on 17th March 2024, a resolution was unanimously passed authorising the initiation of proceedings for obtaining deemed conveyance. In pursuance of the said resolution, the petitioner-Society, through their Advocate, issued a legal notice dated 19th March 2024 to respondent Nos.1 to 6, thereby calling upon them to execute the assignment of lease deed in favour of the petitioner-Association. Despite the service of said notice, respondent No.1 failed and neglected to comply. Consequently, the petitioner-Association was constrained to file an application under Section 11(3) of the MOFA Act seeking a unilateral deemed conveyance certificate.
7. Upon receipt of the application filed under Section 11(3) of the MOFA Act, respondent No.6, i.e., the Competent Authority, issued notices to the concerned respondents. In res
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