Bombay High Court
M/S. MAHAKALI BUILDERS THROUGH ITS PROPRIETORversusMAYURESH CO-OP. HOUSING SOCIETY LTD AND ORS.
- Decided
- Disposal
- Disposed Off
- Bench
- SANDEEP V MARNE
Holding
The certificate of deemed conveyance in favour of the cooperative society is valid and stands affirmed.
Summary
The petition filed by Mahakali Builders challenged a certificate of deemed conveyance of 288 sq. m. of land issued to Mayuresh Co-operative Housing Society. The builder argued that the original landowner had died without notice and that unutilised floor space index (FSI) remained, which it claimed it could exploit. The court held that under Section 11(1) of the Maharashtra Ownership Flats Act the promoter must perfect its title and cannot benefit from the owner's death, and that the competent authority correctly stepped into the promoter’s shoes. The court also found the builder failed to show any unbuilt sanctioned area and reiterated that a promoter cannot delay conveyance on the basis of additional FSI, citing Lakeview Developers. Additionally, the court noted that the builder must seek admission as a member of the society under Section 10 for any unsold units. Consequently, the certificate of deemed conveyance was upheld and the writ petition dismissed.
Issues considered
- The death of the original landowner and lack of notice to the owner
- Whether unconsumed FSI can justify delay in conveyance
- Whether the promoter retained commercial units without society membership
- Applicability of Section 10 of the Maharashtra Ownership Flats Act regarding membership
Legislation cited
Subjects
- deemed conveyance
- co-operative society
- floor space index
- promoter obligations
- membership under MOFA
- Maharashtra property law
Judgment
2026:BHC-AS:24652
k 1/3 23 wp 5889.24 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5889 OF 2024
M/s. Mahakali Builders ....Petitioner
V/S
Mayuresh Co-operative Housing Society Ltd. & Ors. ....Respondents
_________
Mr. Rohit D. Joshi for the Petitioner.
Mr. Raju M. Yamgar for Respondent No.1-Society.
Dr. Dhruti Kapadia, AGP for Respondent Nos.4/State.
__________
CORAM : SANDEEP V. MARNE, J.
DATE : 17 JUNE 2026.
P.C.:
1. The Petition challenges order dated 31 January 2024 passed by
District Deputy Registrar, Co-operative Societies, Raigad at Alibag and
Competent Authority granting certi/cate of unilateral deemed
conveyance of land admeasuring 288 square meters in favour of
Respondent No.1-Society.
2. I have heard Mr. Joshi, the learned counsel appearing for the
Petitioner and Dr. Kapadia, the learned AGP appearing for Respondent
No.4/State.
3. The Petitioner has essentially raised two objections to the order of
deemed conveyance. Firstly, it is sought to be contended that the
original land owner had expired and the impugned order is passed
katkam Page No. 1 of 3
k 2/3 23 wp 5889.24 as.doc
without notice to the land owner. Secondly, it is sought to be contended
that there is unconsumed FSI available in the land which the Petitioner
is entitled to exploit.
4. So far as the issue of death of the original land owner is
concerned, in my view, the Petitioner, in capacity as a Promoter cannot
be permitted to take advantage of death of the original land owner.
Under Section 11(1) of the Maharashtra Ownership Flats (Regulation of
the Promotion of Construction, Sale, Management and Transfer) Act,
1963 (MOFA) it is a statutory duty of the Petitioner-Promoter to perfect
his title and to convey his right, title and interest in the land and
building in favour of the Society. The Competent Authority has stepped
into the shoes of the Petitioner and has performed the task which the
Petitioner was required to perform.
5. So far as the second issue of unconsumed FSI is concerned,
Mr. Joshi is unable to demonstrate from the plan as to whether any
portion of sanctioned built up area has not actually been built by the
Petitioner-Promoter. His reliance on clause 12 of the Agreement for Sale
does not cut any ice. Under clause 12, the Petitioner-Developer has
sought to retain rights in respect of terrace as well as in the additional
FSI. However, it is repeatedly held by this Court that the Promoter
cannot delay conveyance for eternity on the ground of availability of
additional FSI due to change of FSI regime. Reference in this regard can
be made to the judgment of Division Bench of this Court in Lakeview
Developers vs. Eternia Co-operative Housing Society Limited1.
1 2015 SCC OnLine Bom 3824
katkam Page No. 2 of 3
k 3/3 23 wp 5889.24 as.doc
6. Another issue sought to be highlighted by Mr. Joshi is that
Petitioner has retained two commercial galas/units in the building and
that the Respondent-Society has not admitted the Petitioner as member
thereof. Under provisions of Section 10 of MOFA, the Developer needs to
be admitted as member of Co-operative Society in respect of unsold
units. Petitioner can accordingly apply to the Respondent-Society for
admission as member thereof.
7. In my view therefore, the Competent Authority has rightly issued
the certi/cate of deemed conveyance in favour of Respondent-Society.
No interference is warranted in the impugned order. Writ Petition is
accordingly disposed of.
(SANDEEP V. MARNE, J.)
katkam
Signed by: Sudarshan R. Katkam Page No. 3 of 3
Designation: PS To Honourable Judge
Date: 19/06/2026 11:08:24
Checking your session…