The Bombay High Court has clarified that the Registering Authority under the Maharashtra Ownership Flats Act, 1963, has no discretion to refuse registration of a deemed conveyance certificate merely because a necessary party was not impleaded in the original proceedings. This ruling reinforces the statutory mandate for expeditious conveyance and limits the Registering Officer’s role to a purely procedural function.
Background & Facts
The Dispute
The dispute arose from a unilateral deemed conveyance order dated 30 April 2013, issued by the Competent Authority under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). The order granted conveyance of 3640 sq. mtrs of land to the respondent-Society, but expressly preserved the rights of the owner and developer in respect of the balance Floor Space Index (FSI) and Transferable Development Rights (TDR). Subsequently, when the Society sought registration of this conveyance with the Registering Authority, the registration was refused on the ground that the owner had not been impleaded as a party in the original Section 11 proceedings.
Key Facts
- The Competent Authority issued the deemed conveyance order on 30 April 2013.
- The order explicitly preserved the rights of the owner and developer over the balance FSI and TDR.
- The petitioner, Shabnoor Ayub Pathan, acquired title from the erstwhile developer and constructed a second building on the basis of these preserved rights.
- The Registering Authority refused registration of the conveyance on 2024, citing non-impleadment of the owner.
- The respondent-Society filed an application before the Competent Authority on 31 March 2025 seeking a corrigendum to implead the owner.
- The Competent Authority allowed the corrigendum application on 31 March 2025.
- The petitioner challenged this corrigendum order before the High Court via Writ Petition No. 17727 of 2024, filed on 2024.
- The Society had previously obtained a corrigendum for correction of the CTS number from CTS No. 268 to CTS No. 368, which was allowed and is final.
Procedural History
- 30 April 2013: Competent Authority issues deemed conveyance order under Section 11 of MOFA.
- 2024: Registering Authority refuses registration of conveyance due to non-impleadment of owner.
- 31 March 2025: Respondent-Society files application for corrigendum to implead owner; Competent Authority allows it.
- 2024: Petitioner files Writ Petition No. 17727 of 2024 before Bombay High Court.
- 30 March 2026: Judgment delivered by Justice Amit Borkar.
The Parties' Positions
Petitioner (Shabnoor Ayub Pathan): Argued that the corrigendum order was an impermissible attempt to alter a final order, that non-impleadment is a substantive defect that cannot be cured by corrigendum, and that the petitioner’s rights in the balance FSI and TDR had crystallized and been acted upon by constructing a second building.
Respondent-Society: Contended that the corrigendum was merely a procedural correction to rectify an oversight and that the Registering Authority was bound to register the conveyance under Section 11(5) once certified.
Relief Sought
The petitioner sought quashing of the corrigendum order dated 31 March 2025 and a direction to the Registering Authority to refuse registration of the deemed conveyance on grounds of non-impleadment.
The Legal Issue
Can the Registering Authority refuse registration of a deemed conveyance certificate under Section 11(5) of MOFA on the ground that a necessary party (the owner) was not impleaded in the original proceedings before the Competent Authority?
Arguments Presented
For the Petitioner
The petitioner argued that non-impleadment of the owner is a fundamental procedural defect that goes to the root of the order. Relying on Kashish Park Reality Private Limited & Anr. v. State of Maharashtra & Ors., the petitioner contended that a corrigendum cannot be used to cure substantive errors or alter the nature of a final order. The petitioner emphasized that rights in the balance FSI and TDR had already crystallized and been acted upon through construction of a second building, and that allowing the corrigendum would prejudice third-party purchasers.
For the Respondent
The respondent-Society argued that Section 11(5) imposes a mandatory duty on the Registering Authority to register the conveyance upon production of the Competent Authority’s certificate. The non-impleadment, if any, was a defect in the Competent Authority’s proceedings, not the Registering Authority’s. The Society maintained that the corrigendum merely corrected an administrative oversight and did not alter the substance of the 2013 order, which had already preserved the owner’s rights.
The Court's Analysis
The Court undertook a detailed examination of Section 11(5) of MOFA, which states that upon production of the certificate issued under Section 11(3), the Registering Officer is statutorily obligated to register the deemed conveyance. The Court emphasized that the legislative intent behind this provision is to ensure swift and unimpeded conveyance to the housing society, removing any adjudicatory role from the Registering Authority.
"The scheme of the provision does not confer any adjudicatory power upon the Registering Officer to examine the legality, correctness, or propriety of the certificate so issued."
The Court held that even if non-impleadment of the owner constituted an irregularity or illegality in the Competent Authority’s proceedings, such a defect could only be challenged in appropriate substantive proceedings before a competent forum. The Registering Authority, bound by statutory mandate, cannot act as a reviewing body.
The Court further examined the nature of the corrigendum order. It acknowledged that while correction of a CTS number from 268 to 368 was a clerical correction, impleading a party who was never originally joined is a substantive change. The Court relied on its own precedent in Kashish Park Reality, holding that:
"A corrigendum cannot be used to effect substantive changes in an order that has already attained finality."
Thus, the corrigendum order dated 31 March 2025, seeking to implead the owner, was held to be legally unsustainable.
However, the Court also recognized that the original conveyance order dated 30 April 2013, as corrected for the CTS number, was valid and final. The preservation of rights over balance FSI and TDR in the 2013 order remained intact.
The Verdict
The writ petition was partly allowed. The Court held that the corrigendum order dated 31 March 2025, seeking to implead the owner, is not maintainable in law and is set aside. The Registering Authority is directed to register the deemed conveyance certificate dated 30 April 2013, as corrected to reflect CTS No. 368, within four weeks from the date of production of this order. All rights of the petitioner and the owner in respect of the balance FSI and TDR, as expressly preserved in the 2013 order, are kept open.
What This Means For Similar Cases
Registration Cannot Be Blocked by Procedural Defects in Competent Authority Proceedings
- Practitioners must advise housing societies that registration under MOFA Section 11(5) is mandatory upon certification, regardless of procedural flaws in the original application.
- Objections based on non-impleadment, lack of notice, or jurisdictional errors must be raised before the Competent Authority or in a writ petition challenging the order itself - not before the Registering Authority.
Corrigendum Has Limited Scope - No Substantive Alterations
- A corrigendum under MOFA can only correct clerical or typographical errors (e.g., CTS number, spelling, date).
- Any attempt to add parties, alter rights, or change the scope of the original order through corrigendum is void and liable to be quashed.
- Practitioners should file substantive applications or writ petitions to challenge or amend final orders, not rely on corrigendum as a shortcut.
Rights Preserved in Original Orders Remain Binding
- Any express preservation of rights (e.g., FSI, TDR) in a deemed conveyance order remains enforceable even after registration.
- Third-party purchasers relying on such preserved rights may challenge subsequent attempts to alter the original order’s effect.
