Authority: High Court of Judicature at Bombay, Civil Appellate Jurisdiction

Order Date: 8 September 2026 (pronounced)

Case Overview

  • Petitioners: Rohini Gupta and Anr., heirs of the late Kundanlal Laxmichand Gupta, original landowners.
  • Respondents: District Deputy Registrar, Cooperative Societies (Competent Authority) and others, including Respondent No.3 Society (a cooperative housing society).
  • Original land grant: Late K. L. Gupta received 5,356.1 sq yds (≈4,460.37 sq m) at Survey No.71, CTS No.1049/D, Juhu Village, Mumbai Sub‑Urban District, by MCGM letter dated 8 Nov 1974.
  • Lease: Indenture of Lease dated 4 Feb 1975 granted a 98‑year lease (expiring 14 Oct 2072) to Deepak B. Raheja and Kamla C. Wadhwa.
  • Construction: Respondents Nos.4‑7 built “Queens Park” on a 3,901.70 sq m portion of the larger property and sold flats under Section 4 of the Maharashtra Ownership Flats Act, 1963 (MOFA). Flat purchasers formed Respondent No.3 Society.
  • Assignment: Indenture of Assignment dated 17 Mar 1978 transferred lease‑hold rights in the 3,901.70 sq m portion to Respondent No.3 Society for the same 98‑year term.
  • Application for deemed conveyance: Respondent No.3 Society filed an application before the Competent Authority under Section 11 of MOFA on 25 Feb 2008. The Authority issued a certificate of unilateral deemed conveyance on 23 Jun 2025.
  • Prior litigation: Writ Petition No.15689 of 2025 (Chandresh & Shruti Desai) challenged the same order and was dismissed on 1 Dec 2025.
  • Present petition: Petitioners filed Writ Petition No.5991 of 2026 challenging the 23 Jun 2025 order, alleging lack of jurisdiction and that only lease‑hold rights, not ownership, could be conveyed.

Arguments Presented

  • Petitioners (counsel Mr. Karl Tamboly) argued:
  • No failure under Section 11(1) or (3) because promoters had already assigned lease‑hold rights via the 1978 assignment.
  • The landowner granted only lease‑hold rights; therefore the Competent Authority could not convey ownership.
  • No privity of contract between petitioners and flat purchasers; MOFA obligations cannot be imposed.
  • Cited Sanjit Singh Salwan (2025 SCC), Vaidehi Akash (2014 Bom), Grand Paradi CHSL (2010 Bom), and A.H. Wadia Trust (2023 Bom) to support limitation of promoter definition.
  • Respondents (counsel Mr. Mayur Khandeparkar) contended:
  • Petitioners, as landowners, actively participated in construction, satisfying the “causes to be constructed” element of Section 2(c) MOFA.
  • Lease clauses (c, d, l, n, etc.) show the lessor’s control over construction, material, insurance, and eventual ownership of the building.
  • Cited Haroon Hussain Khatri (2010 Bom), Haresh Vijaysinh Bhatia (2025 Bom), and other precedents establishing that a landowner who causes construction is a promoter.
  • Asserted the Competent Authority correctly exercised jurisdiction under Section 11(3) and that the order was not violative of natural justice.

Court’s Analysis

1. Definition of “Promoter” – Section 2(c) MOFA defines a promoter as a person who constructs or causes construction of a building of flats for sale. The phrase “causes to be constructed” expands the definition to include landowners who actively participate in the construction process.

2. Examination of Lease Deed (4 Feb 1975) – Key clauses:

  • Clause c: Lessor must ensure construction within three years at a cost of at least Rs 10 Lakhs.
  • Clause d(ii) & (iii): Lessor controls material quality and can direct correction of deviations from approved plans.
  • Clause l: Insurance of the building to be in joint names of Lessor and Lessee; Lessor may insure at Lessee’s cost.
  • Clause n: Upon expiry or early determination, Lessee must deliver the land and the building to the Lessor.
  • Clause 4: During the lease term the building belongs to the Lessee, but on termination it automatically vests in the Lessor without compensation.

These provisions demonstrate that the Lessor (the petitioners’ father) exercised decisive control over construction, insurance, and ultimate ownership, thereby “causing” the building’s erection.

3. Precedent Application – The Court relied on Haroon Hussain Khatri (where a similar lease clause made the Lessor the owner on expiry, deeming him a promoter) and on Haresh Vijaysinh Bhatia (which held that a promoter who owns the land must transfer both land and building). The Court also distinguished Vaidehi Akash as a redevelopment scenario not analogous to the present lease‑based construction.

4. Obligations under Section 11 – Once classified as promoters, the petitioners are bound by Section 11(1) to perfect and convey their “right, title and interest in the land and building” to the society. The Competent Authority’s power under Section 11(3) to issue a certificate of deemed conveyance is therefore valid.

5. Other Contentions – The Court rejected the estoppel argument, noting that statutory rights under MOFA cannot be barred by estoppel. It also dismissed the natural‑justice claim, observing that the petitioners received notice and chose not to appear, thereby waiving that ground.

6. Effect of Prior Assignment – The 1978 assignment of lease‑hold rights satisfied only a part of the promoter’s obligations; the landowner’s (petitioners’) obligation to convey ownership remained unmet, justifying the Competent Authority’s intervention.

Final Outcome

  • The writ petition is dismissed. The order dated 23 June 2025 granting a certificate of unilateral deemed conveyance of the 3,901.70 sq m land to Respondent No.3 Society stands.
  • No order as to costs.

Topics: Real Estate Law, Cooperative Housing