DATTARAM BHIVA VAITI AND ORSversusTHE COMPETENT AUTH AND DISTRICT DY REGISTRAR OF CO-OP. SOCIETIES, THANE AND ORS

Neeta Sawant                                                  907-WP-977-2023.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION


                       WRIT PETITION NO. 977 OF 2023


Dattaram Bhiva Vaiti & Ors.                                         ...Petitioners


                   : Versus :


The Competent Authority and District                             ...Respondents
Deputy          Registrar,      Co-operative
Societies, Thane & Ors.
                                 ________________
Mr. D.D. Singh with Mr. D.K. Shukla i/b. Mr. Abhinesh Yadav, for the
Petitioners.
Ms. M.S. Srivastava, AGP for State.
Mr. Joel J. Carlos, for Respondent No.2.
Mr. Nimesh Bhatt for Respondent No.15.
                                 ________________


                                    CORAM:          SANDEEP V. MARNE, J.
                                    DATED:          10 JULY 2026.
P.C.:


1)               By this petition, the Petitioners have assailed order dated 11
June 2022 passed by the District Deputy Registrar, Co-operative
Societies, Thane and Competent Authority (Competent Authority)
granting certificate of unilateral deemed conveyance in respect of the
land and building in favour of Respondent No.2-Society.

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2)             I have heard Mr. Singh, learned counsel appearing for the
Petitioners, Mr. Carlos for Respondent No.2-Society and Mr. Bhatt for
Respondent No.15.


3)             Petitioners claim to be the owners of land which is conveyed
in favour of Respondent No.2-Society. Several objections are sought to
be raised for challenging the order of deemed conveyance. One of the
objection is that Petitioners were never granted an opportunity of being
heard while passing the order dated 11 April 2022. It is sought to be
contended that Respondent No.2-Society deliberately gave misleading
address in the application so as to ensure that the notices in the
application are not served on the Petitioners. It is seen that the petition
which was initially instituted in the name of the five Petitioners
indicating that all five of them reside at the address of ‘Flat No.707, 7th
Floor, Ostwal Ornate Building No.2, Near Jain Mandir, Jesal Park,
Bhayandar (West), Thane-401105’.        However, during pendency of the
petition, the First Petitioner-Dattaram Bhiva Vaiti passed away.
Petitioners filed Interim Application to bring on record his legal heirs.
The Interim Application has been allowed by order dated 1 April 2024
and five legal heirs of Petitioner No.1 have been brought on record. In
the amended cause-title, it is claimed that Petitioner Nos.1(a) to 1(d) are
represented by Petitioner No.1(e)-Ramesh Dattaram Vaiti. The address
of Ramesh Dattaram Vaiti is indicated as ‘A/105, Vasundhara Apartment,
Station Road, Bandarwadi Naka, Bhayandar (East), Thane-401105’.           As
against this address of the legal heirs of Petitioner No.1, the address
indicated in respect of Opponent Nos.2 to 6 in the application was ‘Old
Survey No.149, New 11A, Hissa No.7, near Railway Station, Bandarwadi,
Bhayandar (East), Taluka & District-Thane 401105’. It is therefore difficult

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to believe that Respondent No.2-Society deliberately gave misleading
address for the purpose of avoiding service of notices on Opponent
Nos.2 to 6 in Application No. 66/2022. Mr. Carlos, submits that at the
relevant time, the structure at the address was apparently demolished
and therefore notices came back unserved. He submits that Respondent
No.2-Society did everything possible to serve Opponent Nos.2 to 6 in
Application No.66/2022 by effecting substituted service on them by
publishing     notices   in   ‘Daily Punyanagari’ and     ‘Active Times’.
Considering the above position, it is difficult to record a definitive
finding that Respondent No.2 did not take effective steps for serving of
notices on the application on Opponent Nos.2 to 6.


4)             It is also contended on behalf of the Petitioners that they
are the real land owners and had never granted any rights in favour of
M/s. Siddhant Developers from whom Society’s members claimed to
have purchased their flats. It is also sought to be suggested that only one
Agreement for Sale was produced before the Competent Authority
which was executed by M/s. Siddhant Developers in favour of Narmada
Nandram Ahuja. Thus, the Competent Authority had before him some
Agreement for Sale for the purpose of presuming that the building has
been constructed by a developer by execution of Agreement for Sale.
Now whether that the developer had underlying right to execute such
agreements, to construct the building or to sell the flats is an issue
which the Competent Authority cannot determine in limited
jurisdiction under Section 11 of Maharashtra Ownership of Flats Act
(MOFA). If Petitioners believe that M/s. Siddhant Developers did not
have right to construct the building or to sell flats, Petitioners need to
institute Civil Suit and seek declaration of title.

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5)             As against the claim of Respondent No.2-Society of
construction of a building in the year 1984, it is the contention of the
Petitioners that the building has been unauthorisedly constructed in the
year 2002. Even if the contention of Petitioners about construction of
building in the year 2002 is momentarily accepted, it is seen that
Petitioners have lived with the reality that construction of the building
got completed, flats therein were sold and flat purchasers have been
residing in the building for the last 24 long years.       Petitioners did
nothing to stop construction if they believed that the developer had no
right to construct the building or that the land on which the building is
constructed belongs to them.


6)             As of now, what is done by the Competent Authority is
performance of an act which the developer was supposed to perform
under Section 11(1) of MOFA. The Competent Authority has conferred
on to Respondent No.2-Society what he believes is the right of the
developer. If Petitioners believe that developer does not have right
which can be transferred to the society, it is always open to the
Petitioners to seek a declaration to that effect from the Civil Court. It is
well settled principle that mere issuance or registration of Certificate of
unilateral deemed conveyance under Section 11 of MOFA, does not
finally determine rights and entitlement of parties in respect of the
conveyed land. Reference in this regard can be made to the judgment of
the Apex Court in Arunkumar Shah HUF Versus. Avon Arcade Premises
Co-op. Housing Society Ltd. & Ors. 1. All that has happened as of now is
that the Competent Authority has sought to confer some title in respect
of the land on which society’s building is standing in favour of the
society. Issuance of such certificate does not come in the way of the
1    (2025) 7 SCC 249
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                      Petitioners to secure a declaration of title from the Civil Court. In that
                      sense, the Certificate of unilateral deemed conveyance, as well as the
                      registered deed of conveyance would remain subject to the decree that
                      would be passed by the Civil Court. Therefore, instead of this Court
                      going into the intricate issue of title, it is better that Petitioners institute
                      a Suit seeking a declaration that the land which is conveyed to the
                      society actually belongs to them.


                      7)             In view of the above discussion, this Court is unable to
                      grant any relief to the Petitioners in the present petition. The Writ
                      Petition is disposed of as such leaving open liberty to the Petitioners to
                      file a Civil Suit to seek declaration of title in respect of the land
                      conveyed to Respondent No.2-Society.


                      8)             All contentions of parties on merits of the title dispute are
                      expressly kept open and the Civil Court shall not get influenced by any
                      of the observations made in the order.
         Digitally
         signed by
         NEETA
NEETA    SHAILESH
SHAILESH SAWANT
SAWANT Date:
         2026.07.10
         15:15:41
         +0530
                                                                            [SANDEEP V. MARNE, J.]




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