PRESIDENT’S POWER TO ADJUDICATE UPON ELECTION PETITION
Why we are discussing this issue? Opening Remarks: In 2024 Lok Sabha general election was held in May. This was the 18th Lok Sabha election. All political parties offered in manifesto many promises. Freebies are offered by almost all political parties. In Delhi the local state government is sworn in thrice based on freebies. Similarly in Karnataka and Telangana the state government is elected based on freebies. The disadvantage of such freebies is the economy of the State is pulled back due to nonproductive expenses. The taxpayers do not get more advance facilities from the tax they have paid. PIL challenging freebies is pending before the Supreme Court. During Lok Sabha election we saw that one of the parties Congress have distributed a guaranteed cards along with the forms that if they come to power, they will give Rs.8500/- to every woman and Rs.1,000,00/- per year to meet major expenses. This party has won more seats than last two elections and there was religious concentration of votes. There was also a statement that the party if come to power would confiscate entire wealth and do caste survey and thereafter redistribute the same. The congress party won 99 Lok Sabha seats. However, they are in power in three states. Telangana, Himachal and Karnataka. They can offer them. But women who were given guarantee cards along with form started Queuing up outside Congress Party offices. They said we have lost. The question arise now is whether this is a blatant fraud? What does law say? The law which governs election is the Representation of peoples Act 1951 ( Said RP Act 1951) The question is whether all this statements go against the provisions of Section 123 of RP Act 1951 ? A complaint is pending before the President of India challenging election. Now question arises Can third party challenge in representative character the election of candidates who belong to a single largest party who won election on basis of guaranteed card? Who has jurisdiction to hear the election Petition under Section 123 and 8A of RP Act 1951? Does President of India have power under Section 123 or 8 A of the said R.P. Act 1951? This Act came into force on 17th July 1951. Preamble of the Act explains the purpose of its enactment. An Act to provide for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt 1*** practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. The terms corrupt practices is defined in the Act as “corrupt practice means any of the practices specified in section 123” What does corrupt practices mean. Section 123 in The Representation of the People Act, 1951 provides for the same. Corrupt practices.— The following shall be deemed to be corrupt practices for the purposes of this Act:— (1)“Bribery”, that is to say— (A) any gift, offer or promise by a candidate […]
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WHAT HAPPENS WHEN MAKER OF THE WILL DIRECTS TO PAY THE EXECUTOR FROM A PARTICULAR FUND? CAN COURT ISSUE A PROBATE?
To understand the case query we must first learn the provisions of the Indian Succession Act of 1925 IS AN EXECUTOR A TRUSTEE? “There is a distinction between a trustee and an executor, in that the former has only the power to pay what is vested in him as trustee to the persons for whose use he holds it, but has no general power to receive and pay what is due to and from the estate, which is the office of the latter (vide paragraph 13, p. 12 of Williams). The same proposition appears in Halsbury’s Laws of England (3rd Edn., Vol. 16, p. 124, in paragraph 180)” Provisions of Indian Succession Act 1925 Sec 222: Probate only to appoint an executor. (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary implication. Illustrations (i) A wills that C be his executor if B will not. B is appointed executor by implication. (ii) A gives a legacy to B and several legacies to other persons, among the rest to his daughter-in-law C, and adds “but should the within-named C be not living I do constitute and appoint B my whole and sole executrix”. C is appointed executrix by implication. (iii) A appoints several persons executors of his will and codicils and his nephew residuary legatee, and in another codicil are these words,– “I appoint my nephew my residuary legatee to discharge all lawful demands against my will and codicils signed of different dates”. The nephew is appointed an executor by implication. Grant of administration of universal or residuary legatees.— When—(a)the deceased has made a Will, but has not appointed an executor, or (b)the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or (c)the executor dies after having proved the will, but before he has administered all the estate of the deceased, a universal or a residuary legatee may be admitted proving the Will and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. Narration: Thus, the test for finding out whether a person is an executor according to the tenor is to find out whether he is, by necessary implication, nominated by the testator in his stead to generally administer the estate and to pay the testator’s debts and to receive his dues in the performance of his will. An executor is placed in the stead of the testator and he has the right of action against the testator’s debtors and has also the right to dispose of the goods of the testator towards the payment of his debts and the performance of his will. An executor need not be expressly nominated; and if by necessary implication the testator recommends or commits to one or more the charge and office, or the rights which appertain to an executor, it amounts to as much as the ordaining or constituting him or them to be […]
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PATI PATNI AUR VO
LIVE IN RELATIONSHIPS AND RELATIONSHIP IN THE NATURE OF MARRIAGE ANITA ADVANI AND RAJESH KHANNA The case raises an important question. When can a live in relationship be treated as a relationship in the nature of marriage under Indian law Supreme Court’s recent decision concerning the relationship between Anita Advani and Rajesh Khanna. The Supreme Court’s recent dismissal of a plea seeking recognition of Anita Advani’s relationship with late actor Rajesh Khanna as a marriage brings renewed attention to an important area of Indian family law. The distinction is significant because Indian law recognises that certain relationships outside formal marriage may receive statutory protection. At the same time a live in relationship does not automatically acquire the legal status of marriage. Background of the case Anita Advani claimed that she had been in a long term relationship with Rajesh Khanna and sought legal recognition of that relationship along with other reliefs arising from her alleged eviction from his residence. The claim faced a significant legal difficulty because Rajesh Khanna remained legally married to Dimple Kapadia although they had reportedly been living separately for many years. The Bombay High Court declined to recognise the relationship as a relationship in the nature of marriage. The Supreme Court has now declined to interfere with that decision. The decision is important not merely because of the persons involved but because it illustrates the legal limits surrounding recognition of non marital relationships. A live in relationship is not automatically a marriage The Protection of Women from Domestic Violence Act 2005 provides protection to a woman who is or has been in a relationship in the nature of marriage with the respondent. However, this does not mean that every live in relationship will qualify. In D Velusamy versus D Patchaiammal decided in 2010 the Supreme Court explained that a relationship in the nature of marriage must possess certain characteristics of a marital relationship. Relevant factors include the duration of the relationship whether the parties lived together in a shared household whether they represented themselves to society as spouses the nature of their domestic arrangements and whether the parties were legally capable of entering into a marriage. The Court made it clear that merely living together having a sexual relationship or maintaining a relationship for a limited period does not automatically establish a relationship in the nature of marriage. The importance of being legally capable of marriage One of the important aspects of the Velusamy judgment is the requirement that the parties should be legally capable of entering into a marriage. This becomes particularly relevant when one party is already married. A relationship involving a person whose existing marriage has not been legally dissolved cannot simply be treated as equivalent to a valid marriage merely because the parties have lived together for a considerable period. This does not mean that a woman involved with a married man necessarily has no legal remedy. The availability of protection under the Domestic Violence Act must be examined in accordance with the facts of each case and the applicable law. The Indra Sarma decision The Supreme Court subsequently examined the issue […]
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BOMBAY HIGH COURT UPHOLDS ACQUISITION FOR BHENDI BAZAAR CLUSTER REDEVELOPMENT
Moiz Dawoodbhai Palitanawala and Others v. Municipal Corporation of Greater Mumbai and Others Writ Petition Nos. 2997 of 2021 and 4762 of 2024 Judgment dated 23 October 2026 Introduction The Bombay High Court has dismissed Writ Petition Nos. 2997 of 2021 and 4762 of 2024 concerning the acquisition of properties forming part of the Bhendi Bazaar Cluster Development Scheme. The Division Bench comprising Justice Manish Pitale and Justice Shreeram V. Shirsat rejected challenges to the acquisition as well as to the validity of Regulation 33(9)(3)(5) of the Development Control and Promotion Regulations, 2034. The judgment is significant for its interpretation of Sections 125 and 126 of the Maharashtra Regional and Town Planning Act, 1966, particularly the expression “required for a public purpose.” The Court held that acquisition under the MRTP Act is not necessarily dependent upon the land having been separately reserved or designated for a public purpose in the manner contended by the petitioners. The Court held that the statutory requirement that land be “required for a public purpose” has independent significance. The Court also rejected challenges based on Article 300A of the Constitution, excessive delegation, and the alleged private character of the redevelopment scheme. In the connected Waqf petition, the Court rejected the challenge under Section 91 of the Waqf Act, 1995, having regard, among other things, to the failure to invoke the statutory remedy within the prescribed period and the Waqf Board’s own statement that it had no objection to the acquisition. The Court nevertheless preserved the petitioners’ statutory remedy concerning compensation under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Background The proceedings arose from the proposed acquisition of properties situated within the Bhendi Bazaar Cluster Development Scheme. Writ Petition No. 2997 of 2021 was filed by Moiz Dawoodbhai Palitanawala and others, while Writ Petition No. 4762 of 2024 was filed by Dhanwadi Mohallah Mosque Waqf through its Mutawallis. The petitioners challenged, among other matters, the acquisition proceedings, the acquisition notification dated 27 September 2019, the acquisition award dated 30 December 2019, the subsequent steps for taking possession, and the statutory validity of Regulation 33(9)(3)(5) of DCPR 2034. The Waqf petitioner additionally challenged the acquisition on the basis of Section 91 of the Waqf Act. The acquisition formed part of a larger cluster redevelopment scheme involving the redevelopment of old structures in Bhendi Bazaar. The proceedings therefore required the Court to examine the relationship between the MRTP Act, the Development Plan, the DCPR framework, and the statutory acquisition machinery. Principal Issue The principal issue before the Court was whether land could be acquired under Sections 125 and 126 of the MRTP Act when the land had not been separately identified as reserved or designated for a public purpose in the manner contended by the petitioners. The petitioners argued that reservation or designation was a necessary precondition to acquisition. The respondents contended that this interpretation overlooked the statutory expression “required for a public purpose” and the role of Development Control Regulations within the statutory planning framework. The Court accepted the respondents’ interpretation. Petitioners’ Submissions The petitioners raised […]
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Bombay High Court Balances Redevelopment and ED Attachment of Flat
I feel this is one of the best Judgment passed by the Bombay High Court. It has protected right of Enforcement Department and also protected right of redevelopment of the members of the Society. Case Title : Antaral Co-Operative Housing Society vs Enforcement DirectorateCase Number : Writ Petition 11339 of 2026 The Bombay High Court has delivered an important ruling for cooperative housing societies facing redevelopment difficulties because one or more flats are subject to attachment proceedings under the Prevention of Money Laundering Act, commonly known as the Prevention of Money Laundering Act. In a recent order, the Court directed the Enforcement Directorate, commonly known as the ED, to issue a No Objection Certificate to a housing society so that it could proceed with redevelopment of its 44-year-old building, even though one of the ten flats in the building was under attachment by the ED. The decision shows that the attachment of an individual flat does not necessarily have to bring the redevelopment of an entire housing society to a standstill, provided appropriate safeguards are put in place to protect the rights of the enforcement agency. Background of the Case The matter concerned a cooperative housing society consisting of ten flats. The building was more than 44 years old and the society wanted to undertake redevelopment. The difficulty arose because one of the flats in the building had been attached by the Enforcement Directorate under the PMLA. The attachment was connected with proceedings before a Special Court in Ranchi, Jharkhand. Since redevelopment would involve demolition of the existing building, the society approached the ED for a No Objection Certificate. The issue was that the attached flat formed part of the building that was proposed to be demolished and reconstructed. The society therefore approached the Bombay High Court seeking permission to proceed with redevelopment while ensuring that the rights of the ED over the attached property remained protected. Society Did Not Challenge the Attachment An important aspect of the matter was that the society was not seeking to challenge or cancel the attachment of the flat. Instead, the society proposed a mechanism under which the ED would continue to have rights over the property even after redevelopment. The society gave an undertaking that the replacement flat corresponding to the attached flat would be transferred to the ED once the redevelopment was completed. The society also agreed that the redevelopment documents would clearly record that the particular flat was subject to attachment pursuant to the order of the Special Court in Ranchi. Safeguards Offered by the Society The society offered several safeguards to address the concerns of the ED. The replacement flat in the redeveloped building would continue to remain subject to the attachment. The replacement flat would be clearly identified in the redevelopment documents, including its flat number, floor and carpet area. After completion of redevelopment and receipt of the Occupation Certificate, the replacement flat would be handed over to the authorised officer of the ED. The redevelopment agreement and the Permanent Alternate Accommodation Agreement would specifically mention the attachment and the rights of the ED. The monetary benefits relating […]
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BREAKING THE NIB AFTER A DEATH SENTENCE: LEGAL CUSTOM, STARE DECISIS AND JURISPRUDENCE
Recently Muskan Rastogi and her boyfriend Sahil Shukla were sentenced to death by a court in Meerut, Uttar Pradesh, for the 2025 murder of her husband, Saurabh Rajput, in a case widely known as the “blue drum murder case “. So I thought of writing this casual blog. The practice of breaking the nib of a pen after pronouncing a death sentence is an unusual and symbolic judicial tradition associated with some courts and judges in India. The practice has attracted attention because of its connection with the seriousness and finality of capital punishment. Although it carries considerable symbolic significance, it is important to distinguish this judicial custom from a rule of law. The practice is generally understood as a symbolic expression of the gravity of imposing the death penalty. A judge who breaks the nib after signing a death sentence may be conveying the idea that the act of sentencing a person to death is fundamentally different from an ordinary judicial decision. It represents the irreversible nature of the punishment and the heavy responsibility placed upon the judge. However, breaking the nib has no statutory or constitutional basis. There is no general legal requirement that a judge must break the nib after imposing a death sentence. The validity of a death sentence does not depend upon whether the judge follows this practice. The sentence derives its legal authority from the Constitution, legislation and applicable judicial precedent, and not from the ritual accompanying the pronouncement. The practice also raises an interesting question concerning stare decisis. Stare decisis is the doctrine under which courts follow established judicial precedents. In the Indian legal system, decisions of higher courts, particularly the Supreme Court, may establish binding principles of law for subordinate courts. The doctrine promotes consistency, certainty and predictability in the administration of justice. The breaking of the nib, however, does not constitute judicial precedent. A judicial precedent normally contains a legal principle that forms part of the reasoning necessary for deciding a case. Such a principle may have binding or persuasive authority depending upon the court that delivers the decision and the circumstances in which it is applied. The practice of breaking the nib does not establish such a legal principle. Even if judges repeatedly follow the practice, repetition alone does not transform it into a binding precedent. It remains a judicial custom or symbolic tradition unless it is recognized by an appropriate source of law. This distinction is important from the perspective of jurisprudence. Jurisprudence examines the nature, sources and functions of law. The nib breaking tradition demonstrates the difference between formal law and judicial culture. Formal law derives its authority from recognized legal sources. Judicial customs and rituals, on the other hand, may communicate values and institutional attitudes without creating enforceable legal obligations. From the perspective of legal positivism, the practice would not become law simply because judges follow it. Legal validity depends upon recognized sources and rules of the legal system. The fact that a practice is traditionally followed does not, by itself, give it the status of a binding legal rule. From a natural law perspective, the practice […]
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Surplus Without Profit: Reconciling Commercial Activity and Charitable Purpose in Trusts
The Bombay High Court Clarifies Tax Exemptions for Hospitals A landmark ruling by the Bombay High Court has brought significant clarity to the tax obligations of charitable and philanthropic healthcare institutions in India. In the case of Breach Candy Hospital Trust v. Chief Commissioner of Income Tax & Ors., the court firmly established that generating a financial surplus does not automatically imply a commercial profit motive, safeguarding the tax-exempt status of public trusts. For legal professionals, trustees, and administrative boards managing public charitable trusts, this judgment provides a robust framework for understanding the limits of the Income Tax Department’s scrutiny regarding surplus income. The Core Conflict: Is Surplus Proof of Profit? The dispute arose after the Income Tax Department rejected the hospital trust’s applications for tax exemption under Section 10(23C)(via) of the Income-tax Act, 1961, for assessment years spanning nearly two decades (2002–03 to 2021–22). The tax authorities argued that the institution’s substantial surplus income, modern specialist infrastructure, and collection of professional fees indicated that it was operating as a profit-driven enterprise rather than a philanthropic endeavor. They also raised concerns regarding the proportion of free vs. paid treatments and doctor consultation arrangements. Key Legal Pronouncements by the High Court The Division Bench consisting of Justice B.P. Colabawalla and Justice Farhan P. Dubash quashed the department’s rejection orders, outlining several critical legal boundaries: * Surplus Does Not Equal Profit Motive: The court ruled that an institution’s receipts and expenditures do not need to balance perfectly at zero at the end of each financial year. The mere existence of a surplus cannot be treated as definitive proof that the entity operates for profit. * The “Destination of Funds” Test: The true inquiry must look at how the income is ultimately utilized. If the trust’s constitutional documents strictly prohibit the distribution of dividends or profits to individuals, and all funds are funneled back into the institution’s core objectives—such as acquiring advanced medical relief equipment and upgrading infrastructure—the charitable character remains intact. * Modernization is Not Commercialization: Charging fees for high-end medical facilities, utilizing modern specialist infrastructure, or paying professional consultation fees to doctors does not strip a hospital of its philanthropic nature. Broader Implications for Charitable Trusts This judgment reinforces a long-standing principle: the law distinguishes between earning a surplus to sustain and improve a public utility and operating with a commercial motive for private gain. As long as a trust can demonstrate that its funds are securely locked into its foundational public objectives, and there is no evidence of fictitious expenditure or private appropriation, regular operational surpluses cannot be used as a tool to deny statutory tax exemptions. Disclaimer: This publication is intended for general informational and educational purposes only. It does not constitute formal legal advice or establish an attorney-client relationship. Readers should consult qualified legal counsel regarding specific legal queries or case assessments Shruti Desai 15th October 2026
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Running a School Is Not Enough: Bombay High Court on Property Tax Exemption for Educational Trusts
Jai Hind Sindhu Education Trust v. State of Maharashtra (Writ Petition No. 987 of 2012), decided by the Bombay High Court in October 2026 If your trust runs a school, does it automatically get a property tax exemption? The Bombay High Court has just answered that question with a firm “no”. A Division Bench of Justice Bharati Dangre and Justice Manjusha Deshpande has held that education, by itself, is not a charitable purpose for the purposes of municipal property tax. The trust must prove, with material, that its buildings are used for a public charitable purpose, and it must do so every year. The background Jai Hind Sindhu Education Trust was registered in 1955 as a public charitable trust under the Bombay Public Trusts Act. It runs a primary school, a high school and junior college, and a commerce college in Pimpri, Pune. Some of these institutions are aided and some are unaided, and the trust runs them as linguistic minority institutions. The dispute began when the Pimpri Chinchwad Municipal Corporation (PCMC) issued a notice in 1999 seeking property tax going back to 1982. A demand of about Rs 6.5 lakh was later confirmed. The trust went to the High Court, asking for a declaration that it is exempt from property tax and for the demands and any future demands to be quashed. The petition was filed in 2012 and was decided only in October 2026. The Advocate General assisted the Court at its request. What the trust argued The trust’s case was simple. Its only object is to promote and manage educational institutions. It works on a no-profit basis, and its funds are used only for education. Because it is a public charitable trust and a minority institution, it said, its buildings fall within the exemption in Section 132(1)(b) of the Maharashtra Municipal Corporations Act, 1949. It also leaned on the Supreme Court’s decision in Municipal Corporation of Delhi v. Children Book Trust. The Corporation and the State countered on two fronts. First, they raised a preliminary objection that a statutory appeal was available, so a writ petition was not the right route. Second, on merits, they argued that simply calling oneself a charitable educational institution is not enough to claim an exemption. What the Court held Education per se is not automatically “charitable”. The Court refused to accept the blanket proposition that every educational institution is entitled to exemption. It read Children Book Trust as not laying down any such absolute rule. For education to count as a charitable purpose, there must be an element of public benefit or philanthropy. A school run on commercial lines does not qualify merely because it is a school. Both conditions in Section 132 must be met. Section 132(1)(b) exempts buildings and lands that are solely occupied and used for a public charitable purpose. Section 132(2) takes away the exemption where trade or business is carried on, or where rent is derived. Reading this with Section 9 of the Maharashtra Public Trusts Act, the Court held that the exemption requires sole occupation and use for a public charitable purpose. Being a linguistic […]
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Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) made simpler for layman
Short Notes: Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) Government Order dated 30 September 2026 Redevelopment G.R. 30-09-2026 Redevelopment Govt Circular English-Marathi Short Notes: Maharashtra Government Order on Redevelopment of Co-operative Housing Societies (30 September 2026) Government Order dated 30 September 2026 Purpose of the Government Order Issued under Section 79A of the Maharashtra Co-operative Societies Act, 1960. Replaces the Government Resolution dated 4 July 2019 and subsequent circulars. Aims to ensure transparency, uniformity and member participation in redevelopment. Applicability Applies to developer-led redevelopment, self-redevelopment, group redevelopment and cluster redevelopment. The prescribed procedures for appointing developers also apply to contractors in self-redevelopment. Eligibility for Redevelopment The building must be declared dilapidated, ruinous, unsafe or dangerous by the competent authority. The society must be eligible under the applicable Development Control Regulations. Authority to Decide Only a duly elected and legally constituted managing committee can initiate redevelopment decisions. An administrator or authorised officer appointed by the Registrar cannot take the redevelopment decision. Special General Meeting (SGM) At least one-fifth of the society’s members can request an SGM. The SGM must be convened within two months of the application. Members must receive 14 days’ advance notice. A minimum of three architects or project management consultants must be invited to submit quotations. Quorum and Approval The quorum for the redevelopment SGM is two-thirds of the total membership. Redevelopment requires approval from at least 51% of the total members. Eligible members may attend through video conferencing, subject to the requirement that at least 51% of total members are physically present. If quorum is not achieved at the adjourned meeting, the proposal cannot be reconsidered for three months. Appointment of Architect/PMC The SGM selects an architect or project management consultant. The appointment letter must be issued within 30 days. The architect/PMC must prepare the project report within two months of appointment. Project Report and Tender Process The project report must include carpet area, commercial space, parking, open space and construction specifications. Members must be given an opportunity to submit suggestions. The tender draft requires SGM approval. Public tenders must be invited through Marathi and English newspapers with the largest local circulation. At least three tenders should be obtained, with prescribed extensions if fewer are received. Selection of Developer The developer must be selected at an SGM in the presence of a Registrar-appointed authorised officer. The quorum is two-thirds of total membership. Approval of at least 51% of total members is required. Voting may be by show of hands or secret ballot if requested in writing by one-fifth of total members. The meeting must be video-recorded. Transparency and Documentation Members have the right to inspect redevelopment documents free of charge. Copies must be provided on payment of the prescribed fee. Meeting notices and minutes must be submitted to the Registrar within 14 days. Video recordings and relevant documents must be preserved. Development Agreement The agreement with the developer must be executed within three months. The construction period should not exceed two years, or three years in exceptional circumstances. Bank guarantees must be decided by the general meeting. Alternative accommodation, rent or […]
Read moreROHINI GUPTA v. DISTRICT DEPUTY REGISTRAR: A CRITICAL LEGAL ANALYSIS OF THE SCOPE AND LIMITS OF DEEMED CONVEYANCE UNDER SECTION 11 OF MOFA
ROHINI GUPTA: CRITICAL LEGAL ANALYSIS AND FALLACIES The following analysis identifies potential issues in the reasoning of Rohini Gupta by comparing the judgment with the principles discussed in Ivory Properties, A.H. Wadia Trust and the other decisions referred to in the draft. The points below are arguable grounds for examination; they should not be treated as established findings of error without verification against the complete judgments and underlying documents. 1. Rohini Gupta v. District Deputy Registrar Bombay High Court | 8 September 2026 | Writ Petition No. 5991 of 2026 | Justice Sandeep V. Marne The judgment dismissed the original landowners’ writ petition and upheld the deemed conveyance of 3,901.70 sq. m. of land to the society. The principal issue is whether the Court correctly moved from its finding that the landowners were promoters to the conclusion that they were obliged to convey their reversionary ownership of the land. 2. The principal legal conflict The central issue is that Rohini Gupta recognises the principle that deemed conveyance cannot ordinarily exceed the promoter’s rights, but nevertheless upholds freehold conveyance on the particular facts before the Court. The comparison requires distinguishing between an error in interpreting Section 11 of MOFA, an error in appreciating the lease deed and registered agreements, and an error in exercising the competent authority’s jurisdiction. A different conclusion on the facts does not, by itself, establish an error of law. Legal issue Earlier legal position Rohini Gupta judgment Extent of rights under Section 11 Society ordinarily receives the rights the promoter is entitled and obliged to convey. The Court held that the landowners were also promoters and were obliged to convey their ownership interest. Leasehold versus freehold An authority cannot ordinarily substitute freehold ownership for an agreement expressly limited to leasehold rights. The Court upheld freehold conveyance, relying on the landowners’ participation in the project and the agreements concerning ownership. Effect of an existing lease assignment An assignment may fulfil the promoter’s obligation to transfer the leasehold interest. The Court held that the earlier assignment fulfilled only part of the statutory obligation because the landowners had a separate obligation. Jurisdiction under Section 11 Deemed conveyance requires failure to fulfil the statutory obligation. The Court found a continuing failure on the part of the landowners, notwithstanding the earlier assignment. Nature of proceedings Summary proceedings do not finally determine complicated title disputes. The Court upheld the order while preserving the parties’ right to pursue appropriate civil proceedings. The judgment relies on A.H. Wadia Trust, Haresh Vijaysinh Bhatia and other decisions to distinguish cases where the promoter is merely a lessee from cases where the landowner is also a promoter or has an independent statutory obligation to convey. 3. Possible errors in Rohini Gupta judgment The following are potential grounds for challenging the reasoning. They are arguable errors, not findings that the judgment is necessarily erroneous. Sr. No. Paragraph of Rohini Gupta Possible error in reasoning Legal significance 1 Paras 14–15, 21–24 Treating participation in construction as sufficient to establish an obligation to convey freehold ownership. The Court inferred that the landowners became promoters because they exercised control over construction […]
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From Leasehold to Freehold: The Scope and Limitations of Unilateral Deemed Conveyance under Section 11 of MOFA
Whether Unilateral Deemed Conveyance Under Section 11 of MOFA Can Convert Leasehold Property into Freehold? The legal position depends on the nature of the rights conferred by the original lease deed, the registered agreements for sale, the promoter’s obligations and the applicable land laws. The power to grant unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA), does not automatically confer the power to convert leasehold rights into freehold ownership. However, freehold deemed conveyance may be permissible where the underlying agreements and title documents establish a legally enforceable obligation to transfer ownership. The distinction is between enforcing an existing right to ownership and creating a new proprietary right that the promoter never possessed or was never obliged to transfer. Statutory Position Under Section 11 of MOFA Section 11(1) of MOFA obliges the promoter to take the necessary steps to complete his title and convey to the society or other association of flat purchasers the promoter’s right, title and interest in the land and building, in accordance with the agreements and statutory requirements. Section 11(3) provides the mechanism for applying for deemed conveyance when the promoter fails to fulfil that obligation. Section 11(4) empowers the competent authority to examine the application and issue a certificate of entitlement, while Section 11(5) provides for the execution of the unilateral instrument. The statutory expression “his right, title and interest” is significant. It does not, by itself, mean that every deemed conveyance must transfer absolute ownership of the land. There is a fundamental distinction between the power to execute a conveyance without the promoter’s cooperation and the power to enlarge the proprietary rights that are the subject of that conveyance. Relevant Bombay High Court and Supreme Court Decisions Ivory Properties and Hotels Pvt. Ltd. v. District Deputy Registrar Bombay High Court | 24 February 2026 | 2026:BHC-AS:9375 This judgment directly examines whether deemed conveyance under MOFA can confer freehold ownership where the underlying arrangements refer to leasehold rights. The Court accepted the legal proposition that where the MOFA agreements clearly contemplate only the assignment of leasehold rights, the competent authority cannot go beyond those agreements and grant freehold conveyance. However, the Court distinguished the facts before it. The registered agreements for sale contained provisions indicating the transfer of ownership, and the purchasers had paid consideration towards the land. Having regard to the material before it, the Court upheld the freehold deemed conveyance. The Court also clarified that complicated questions of title remain open for adjudication in appropriate civil proceedings. The decision, therefore, recognises that the mere existence of a lease arrangement does not invariably preclude freehold deemed conveyance. The terms of the registered agreements and the supporting title documents are material to determining the nature of the rights that may be conveyed. New Sonal Industries Premises Ltd. v. District Deputy Registrar Bombay High Court | 2025 | 2025 SCC OnLine Bom 391 This decision is relevant where the governing agreements specifically provide for the assignment of leasehold rights. The legal proposition relied upon in Ivory Properties is that the competent authority cannot substitute freehold ownership for an agreed assignment of […]
Read morePrinciples of Statutory Interpretation, Precedence and Limitations
Limitation of Special Laws to Override Common Statute The general principle of statutory interpretation is that a special law (lex specialis) generally prevails over a general or common statute (lex generalis) when both deal with the same subject matter and contain conflicting provisions. This principle is expressed by the Latin maxim Generalia specialibus non derogant, meaning that general provisions do not derogate from special provisions. Meaning A special law is enacted to regulate a particular subject, class of persons or specific situation, whereas a general statute applies more broadly. When both laws apply to the same matter, the special law ordinarily takes precedence over the general statute, provided that the legislature has not indicated a contrary intention. Limitations on the overriding effect of special laws The overriding effect of a special law is subject to several limitations. Legislative intention: A special law does not automatically override a general statute in every situation. The intention of the legislature must be considered. Absence of conflict: If the provisions of the special law and the general statute can operate harmoniously, both should ordinarily be given effect. Express overriding provisions: If the general statute contains an express non obstante clause, such as “notwithstanding anything inconsistent therewith in any other law,” the court must examine its scope and the legislative intention behind it. Subsequent legislation: A later general statute may override an earlier special law if the legislature clearly intends to do so. However, a general amendment does not ordinarily repeal a special law by implication. Different fields of operation: Where the special law and general statute govern different aspects of a matter, the special law does not necessarily displace the general statute altogether. Constitutional supremacy: Neither a special law nor a general statute can override the Constitution. Both remain subject to constitutional limitations. Important judicial decisions LIC v. D.J. Bahadur (1981) The Supreme Court of India explained the relationship between special and general laws and recognized that a special statute ordinarily prevails over a general statute dealing with the same subject. The Court also considered whether a subsequent general enactment was intended to override the special legislation. LIC v. D.J. Bahadur establishes that the special-versus-general distinction is contextual, not absolute. A special statute does not automatically override every other statute, and the courts must examine legislative intention, inconsistency and the possibility of harmonious construction. Applied to MOFA, the decision supports a careful examination of the limits of Section 11. It does not, on its own, establish that freehold deemed conveyance is impermissible. Solidaire India Ltd. v. Fairgrowth Financial Services Ltd. (2001) Solidaire India establishes that a later special statute may prevail over an earlier special statute where their overriding provisions conflict and the legislative intention supports that result. It does not establish that Section 11 of MOFA automatically overrides leasehold restrictions or independently authorises conversion into freehold ownership. Its relevance to a MOFA dispute is principally interpretive: the court must identify the actual statutory conflict, consider legislative intention and distinguish statutory priority from the separate question of whether the society has a substantive right to freehold title. The Supreme Court considered the conflict between […]
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