Bombay High Court
Upadhyay Dairy Farm vs District Deputy Registrar Co Op ... on 13 October, 2025
Author: Manish Pitale
Bench: Manish Pitale
2025:BHC-OS:18750
22to24WPL30121_24.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.30126 OF 2024
AND
WRIT PETITION (L) NO.30125 OF 2024
Ramkripal Ramjas Upadhyay legal heir of
late Ramjas Ramraj Upadhyay ... Petitioner
Vs.
District Deputy Registrar, Co-operative Societies,
Mumbai City (4) and others ... Respondents
AND
WRIT PETITION (L) NO.30121 OF 2024
M/s. Upadhyay Dairy Farm and another ... Petitioners
Vs.
District Deputy Registrar, Co-operative Societies,
Mumbai City (4) and others ... Respondents
---
Mr. Amogh Singh a/w. Ms. Riya Chavan Fahehchandkar i/b. M/s. Solicis Lex for
Petitioner in all Petitions.
Mr. Dipesh Siroya, AGP for Respondent Nos.1 and 5 in WPL/30121/2024.
Mr. Mohit Jadhav, Additional GP for Respondent Nos.1 & 7 in WPL/30125/2024.
Ms. Usha Rahi, AGP for Respondent Nos.1 and 6 in WPL/30126/2024.
Mr. Rajiv Narula a/w. Mr. Tarang Jagtiani i/b. Jhangiani, Narula & Associates for
Respondent No.2 in WPL/30121/2024 and WPL/30125/2024 and for Respondent
No.3 in WPL/30126/2024.
CORAM : MANISH PITALE, J.
DATE : OCTOBER 13, 2025 P.C. :
. Heard learned counsel for the parties in these three petitions.
2. The petitioners are owners of the land wherein flats were constructed and three co-operative housing societies were formed. These societies applied for grant of unilateral deemed conveyance before the competent authority. The petitioners appeared before the competent authority and opposed the grant. The objections raised by the petitioners were overruled and by the impugned orders, the respondent No.1 -
1/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 :::22to24WPL30121_24.doc competent authority under the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA Act) granted unilateral deemed conveyance as claimed by the respondent societies.
3. Upon notices being issued, the respondent societies appeared through counsel and opposed the present petition.
4. Mr. Singh, learned counsel for the petitioners submitted that despite the settled position of law upon which the respondent societies rely, in the facts of the present case, the unilateral deemed conveyances could not have been granted by the competent authority without any reference to the obligations to which individual flat purchasers had agreed in the individual agreements executed in their favour. It was submitted that clauses of such agreements executed under the provisions of MOFA Act continued to bind the parties and since the petitioners, in the facts of the present case, have not raised any dispute pertaining to title, relegating the petitioners to file civil suits would not be appropriate.
5. In order to support the aforesaid contention, the learned counsel for the petitioners relied upon the relevant clauses of the development agreement and the relevant clauses of the agreements executed with individual flat purchasers. It was submitted that the said clauses specifically reserved 10 ft. wide access way surrounding the boundary of the property so as to ensure access for the petitioners to the adjoining properties; entitlement of the petitioners was also recognized to use a well water and / or bore-well for the adjoining property, as also entitlement for an office space / milk shop and a temple located on the property was recognized. It was submitted that the entitlements carved out in the agreements in favour of the petitioners could not be brushed aside on the basis of the specific position of law laid down by this Court in various judgements in the context of unilateral deemed conveyance 2/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc being issued by the competent authority. On this basis, it was submitted that, while the unilateral deemed conveyances may be upheld, appropriate riders may be added by this Court to satisfy the claims made by the petitioners in the context of the aforesaid agreements. It was submitted that paragraph 30 of the judgement of this Court in the case of ACME Enterprises and another Vs. Deputy Registrar, Co-operative Societies and others, 2023 SCC OnLine Bom 1102, squarely applies to the facts of the present case.
6. On the other hand, Mr. Narula, learned counsel appearing for the contesting respondent societies submitted that the position of law laid down by the Division Bench of this Court in the case of Zainul Abedin Yusufali Massawawala and others Vs. Competent Authority, District Deputy Registrar of Co-operative Housing Societies, Mumbai and others, 2016 SCC OnLine Bom 6028 and learned Single Judge of this Court in the case of ACME Enterprises and another Vs. Deputy Registrar, Co-operative Societies and others (supra); as also the position of law clarified by the Supreme Court in the case of Arunkumar H. Shah HUF Vs. Avon Arcade Premises Co-operative Society Limited, 2025 SCC OnLine SC 828, clearly demonstrate that there is no substance in the contentions raised on behalf of the petitioners. It was submitted that the aforesaid judgements made it abundantly clear that any such dispute could be raised in an appropriately instituted civil suit by the aggrieved party. It was emphasized that as per the said position of law, even if the deemed conveyance was claimed to have been granted beyond the stipulations of the agreement, such a grievance could be raised only in an appropriately instituted civil suit. The distinction sought to be made on behalf of the petitioners was inappropriate, for the reason that the whole purpose of the societies filing the applications before the competent authority was to ensure that conveyance was executed in the backdrop of the failure on the part of the petitioners to 3/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc execute such conveyance. A perusal of the schedule to the agreements would show that the conveyance was granted strictly in terms thereof and any dispute sought to be raised by the petitioners ought to be considered only before the competent civil court.
7. Learned AGP appearing on behalf of respondent No.1-State supported the impugned order. He relied upon clauses (g), (h) and (i) of paragraph 16 of the impugned order to highlight that there were serious disputes that came to light in the backdrop of the submissions made on behalf of the petitioners before the competent authority and therefore, the grievances sought to be raised by the petitioners can be raised only before the competent civil court.
8. Before considering the rival contentions, it would be appropriate to refer to the position of law as recognized in the aforesaid judgements. In the case of Arunkumar H. Shah HUF Vs. Avon Arcade Premises Co-operative Society Limited (supra), the Supreme Court in the context of Section 11 of MOFA Act concluded as follows:-
"37. Our conclusions on the interpretation of subsections (4) and (5) of Section 11 of the MOFA are as under:
i. It is no doubt true that quasi-judicial powers have been conferred on the competent authority while dealing with applications under Section 11(3) of the MOFA. However, proceedings before the competent authority under Section 11(3) are of a summary nature, as can be seen from the MOFA Rules. Therefore, the competent authority, while passing the final order, must record reasons; 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 4/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc conveyance unless the same is manifestly illegal. The writ court should generally be slow 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 iv. The registering officer has no power to sit in appeal over the order of the competent authority while exercising the power under Section 11(5). He can refuse registration only on the grounds indicated in paragraph 23 above and not beyond. Thus, the scope of the powers conferred on the registering officer is limited."
9. The Division Bench of this Court in the case of Zainul Abedin Yusufali Massawawala and others Vs. Competent Authority, District Deputy Registrar of Co-operative Housing Societies, Mumbai and others (supra), after considering the specific controversy raised on behalf of the aggrieved party therein, held as follows:-
"9. ... We are of the clear opinion that the society approached the Competent Authority with a limited request, namely, that having formed a legal entity namely the co- operative housing society of the flat purchasers, it is the obligation now of the promoter to convey the right, title and interest in the building and the lands beneath, so that the legal entity will be entitled to enjoy the right, title and interest in the property. If while granting the deemed conveyance, the Competent Authority has in any manner, traveled beyond the stipulations in the agreement, and the grievance of the petitioners is that a larger property is allowed to be claimed by the society contrary to the covenant-and-recitals of the two- agreements, then the remedy of the petitioners even in terms of two decisions of this court in Tushar Jivram Chauhan v State of Maharashtra, (2015) 4 Mah LJ 867 and Mazda-Construction Company v Sultanabad Darshan CHS Ltd., 2012 SCC. OnLine Bom 1266 relied upon by Mr. Khandeparkar is not to file a writ petition under Article 226 in this court, but to approach competent civil court and establish this right, title and interest in relation to the larger property. While establishing and seeking to prove it, the petitioners can also allege that contrary to the Development Agreement and a MOFA Agreement, the society claimed a larger property and relying upon those submissions the Competent Authority has granted the relief in 5/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc relation thereto. That is the prejudice caused and which the petitioners can seek a redressal thereof by approaching such a court. During the course of such proceedings, the petitioners can highlight the alleged wrongful conduct of the society in firstly bringing a suit and withdrawing it and for the same relief namely for failure to discharge MOFA obligations, then approaching the Competent Authority belatedly and obtaining the Deemed Conveyance in the absence of the petitioners. Therefore, that adjudication, if at all one can term it, and the order therein, would not be binding on the petitioners, ought to be the eventual declaration. That, they can claim irrespective of any application under Section 11 of MOFA, which has been made in this case. From the contents thereof or the observations and conclusions in the impugned order, we are of the opinion that the jurisdiction of the competent civil court is not barred, despite such document being placed on record and relied upon by respondent no. 3. The Civil court will adjudicate the issue of right, title and interest of the petitioners in the larger property by independently applying its mind and on a total appraisal of the oral and documentary evidence before it. Once all such remedies are intact then, we do not think that in writ jurisdiction we should entertain such a dispute."
10. A perusal of the above-quoted portion shows that the Division Bench of this Court in the said judgement went to the extent of holding that if the competent authority, while granting deemed conveyance, is alleged to have travelled beyond the stipulations, including a grievance that a larger property had been conveyed, the aggrieved party could approach the competent civil court in respect of such a grievance.
11. The learned Single Judge of this Court in the case of ACME Enterprises and another Vs. Deputy Registrar, Co-operative Societies and others (supra) followed the aforesaid dictum and after quoting the relevant portion of the judgement, held as follows:-
"29. The question again arose in the case of Ganga Bhaskar Builders (supra), on which Mr. Kamat placed reliance. A learned Single Judge of this Court after adverting to the previous pronouncements including the judgment in the case of Tushar Jivram Chauhan V. State of Maharashtra observed that in the facts of the said case the Society cannot insist for 6/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc the deemed conveyance and/or certificate of the entire land as was done in that case, based upon the society's wrong averments that there was no balance FSI available as per the prevailing DC rules and the bye-laws.
30. From the above statutory provisions and enunciation, the position which emerges can be summarized as under. The authority to grant deemed conveyance is conditioned and controlled by the primary obligation of the promoter to convey to the organization of flat purchasers right, title and interest in the land and buildings, in accordance with the agreement executed under Section 4. Competent authority cannot convey more than what the promoter had agreed to convey under the agreement executed under Section 4. What competent authority is thus required to consider is, the extent of the obligation incurred by the promoter, whether the obligation to execute the conveyance became enforceable and whether the promoter committed default in, or otherwise disabled himself from, executing the conveyance.
31. The enquiry is thus of limited nature. The competent authority cannot delve into the aspects of title. Nor the finding of the competent authority precludes a party from agitating the grievance as to the entitlement of the organization of purchasers to have the conveyance, before the Civil Court. The remit of enquiry by the competent authority is, thus, whether the conditions stipulated for enforcement of the obligation to execute the conveyance have been satisfied and, if yes, order an unilateral deemed conveyance."
12. The position of law that emerges from the aforesaid judgements clearly indicates that even if the grievance of the aggrieved party like the petitioners herein is that the competent authority, by issuing the deemed conveyance, has conveyed property beyond the agreement, the only remedy is to approach the civil court. In this context, reference to the schedules to the agreements assumes significance. The schedules are not disputed and there is substance in the contention raised on behalf of the respondent societies that it was due to failure on the part of the petitioners in executing conveyances that the societies were constrained to approach the competent authority for granting unilateral deemed conveyance. As recorded in the aforementioned judgement in the case of 7/8 ::: Uploaded on - 14/10/2025 ::: Downloaded on - 14/10/2025 21:18:48 ::: 22to24WPL30121_24.doc ACME Enterprises and another Vs. Deputy Registrar, Co-operative Societies and others (supra), the enquiry in such situations is necessarily of limited nature and disputes of the kind sought to be raised on behalf of the parties like the petitioners ought to be ventilated before the competent civil court. As regards the distinction sought to be made on behalf of the petitioner that in these cases, the petitioners are carving upon entitlements recorded in the subject agreements, suffice it to say that such a distinction can be of no consequence, in the light of the specific observations made by the competent authority in clauses (g), (h) and (i) of paragraph 16 of the impugned order. The moment disputes of the nature recorded in the said portion of the impugned order arise, there can be no other way for the petitioners but to approach the competent civil court to ventilate their grievances.
13. The petitioners have failed to make out a case in their favour and therefore, this Court finds no substance in the instant petitions. Accordingly, the petitions are dismissed.
14. Pending applications, if any, stand disposed of.
(MANISH PITALE, J.)
MINAL Digitally signed by
MINAL SANDIP
SANDIP
PARAB
PARAB
Date: 2025.10.14
10:50:13 +0530
Minal Parab
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