Section 5A of MOFA – Execution of Unilateral Deemed Lease Deed
Section 5A of MOFA – Execution of Unilateral Deemed Lease Deed
Bombay HC Upholds Unilateral Deemed Lease Deed – After Accepting Development Agreement Benefits, Cannot Deny Contractual Lease Obligations
Bombay HC – Fear of the Housing Society on Future Redevelopment is not valid ground to refuse execution of unilateral lease deed as per the Development Agreement
Bombay HC – Courts Cannot Rewrite Contracts to Create Restrictions which the Parties never agreed in the Deemed Conveyance and the Development Agreement.
Bombay HC – Deemed Conveyance and Deemed Lease Deed under MOFA give effect to the pre-existing property rights. A housing society cannot evade obligations of the Development Agreement and the Deemed Conveyance merely because the consequences of such obligations have later on become inconvenient to the members of the society.
The development agreement provided that the smaller premises Building B shall be in exclusive use, occupation and possession of four tenants (predecessors-in-time of respondent nos.2 to 8) and also exclusive right to fetch water from the well. It was further provided that the flat purchasers of new building A shall not have any right, tile and interest in he smaller premises and Building B. It was also provided that the purchasers of society premises shall execute a perpetual lease at Re.1/- per year in favour of four persons.
On 12.4.2016, the deemed conveyance was executed subject to the condition of grant of perpetual lease.
However, the respondent nos.2 to 8 refused to execute lease ground and insisted for redevelopment rights of Building B two buildings.
The petitioner had terminated the tenancy and filed suit for eviction.
After nine years of conveyance, the respondent no.2 moved the Authority for execution of the Deemed Lease Deed and same was allowed by the order dated 18.8.2025.
On first principles of law, the Petitioner-society cannot be permitted to, on the one hand, derive the benefit under Development Agreement and, on the other hand, deny its liability to execute a perpetual Lease Deed in favour of Respondent Nos. 2 to 8. The Petitioner-society cannot approbate and reprobate. Secondly, it is pertinent to note that, the apprehension on the part of the Petitioner society stems from the proposed unrestrained development over the smaller premises and thereby blocking the sea view of the members of the Petitioner-society. Indeed, the instruments on record do not indicate that any such obligation not to erect the building on the smaller premises beyond a particular height, was incurred by the predecessor in-title of Respondent Nos. 2 to 8,
The Petitioner-society cannot be permitted to resile from its contractual obligations and withhold the execution of the perpetual Lease Deed in favour of Respondent Nos. 2 to 8 on the basis of an apprehension that if Respondent Nos. 2 to 8 carry out unrestrained development of the smaller premises, the rights of the members of he Petitioner-society would be jeopardised.
Judgment dated 14.7.2026 of the High Court of Bombay (OS) in Writ Petition (L) No.32903 of 2025 of Pran Ashish Cooperative Housing Society Vs. District Deputy Registrar Cooperative Societies, Mumbai City and others
