Pendency Of Civil Suits Over Alleged Unauthorised Construction And FSI Diversion No Bar To Deemed Conveyance Under MOFA: Bombay High Court
Sanchayita Lahkar
The High Court of Bombay Single Bench of Justice Amit Borkar allowed a writ petition filed by a cooperative housing society challenging the rejection of its application for unilateral deemed conveyance of land on which its residential buildings stand. The competent authority had declined the application on the grounds that the area claimed exceeded the society's entitlement and that pending civil suits concerning alleged unauthorised construction and diversion of FSI warranted deferral. The Court set aside the order and directed issuance of a deemed conveyance certificate within four weeks.
The petitioner cooperative housing society invoked the supervisory jurisdiction of the High Court under Article 227 of the Constitution of India challenging an order passed by the District Deputy Registrar, Cooperative Societies, rejecting its application for unilateral deemed conveyance under Section 11(3) of the Maharashtra Ownership Flats Act, 1963.
The land in question comprised two contiguous plots situated at Bandra, Mumbai, originally leased by the owner to two cooperative housing societies. Development agreements were subsequently executed appointing a developer under the Slum Rehabilitation Authority scheme to provide alternate accommodation to occupants while utilizing the remaining FSI for development. Later arrangements between the developer and associated entities governed construction rights and development of the property.
Following surveys and rectification of revenue records, additional land area was identified and the larger property was amalgamated and subdivided with approval of the Slum Rehabilitation Authority. One component, forming the free sale portion, was further subdivided into multiple parcels including the land on which the petitioner society’s buildings were constructed.
Residential buildings known as “Quantum Park” consisting of two wings were constructed and flats were sold to purchasers through registered agreements for sale. After possession was handed over, a cooperative housing society was formed and registered.
As the developers did not execute conveyance despite notice, the society filed an application for deemed conveyance. The competent authority rejected the application on the ground that the area claimed exceeded the society’s entitlement and noted that civil suits relating to alleged illegal construction on certain floors were pending. The society challenged this decision before the High Court.
The Court observed that “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.”
Regarding examination of documentary records, the Court stated that “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 Court recorded that official records demonstrated subdivision of the property and identification of the relevant parcel. It observed that “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.”
The Court further noted that “The measurement is not an approximation drawn by the society. It flows from survey records and subdivision particulars maintained in official registers.”
Addressing the approach adopted by the authority, the Court stated that “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.”
The Court recorded that “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.”
On the issue of pending civil suits, the Court stated that “The mere pendency of civil suits cannot operate as a blanket prohibition against exercise of statutory power under Section 11 of MOFA.”
The Court also recorded that “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.”
Examining the nature of disputes raised in the pending suits, the Court stated that “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 Court finally recorded that “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 Court ordered that “The writ petition is allowed. 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.”
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.”
“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… within a period of four weeks from the date of receipt of a copy of this order. All rights and contentions of the parties in pending suits… are kept open.”
Advocates Representing the Parties
For the Petitioners: Siddhesh Bhole with Maithili Jha and Aryesh Gaje, instructed by SSB Legal Advisory
For the Respondents: Prashant P. Kulkarni; D.V. Deokar with D. Parikh instructed by Parimal K. Shroff & Co.; Shafi Sayed with Sunita Yadav instructed by S.A. Associates; Aarushi Yadav with Aatish Jayade instructed by Ravleen Sabharwal; Satyajeet P. Dighe; S.D. Chipade, AGP for the State
Case Title: Quantum Park Cooperative Housing Society Limited v AHCL-PEL & Ors.
Neutral Citation: 2026: BHC-AS:9301
Case Number: Writ Petition No.10220 of 2025
Bench: Justice Amit Borkar
