Nitin Nagarji Mehta vs Shree Siddhi Chsl And Ors

CNR No : HCBM010387162025

Neeta Sawant WP-12677-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12677 OF 2025
Nitin Nagarji Mehta ...Petitioner
:Versus :

1. Shree Jupiter CHSL
2. Shantabai Budhaji Bhandari
3. Jaywant Budhaji Bhandari
4. Laxmibai Budhaji Bhandari
5. Parvati Budhaji Bhandar
6. Parshuram Ramchandra Shinde
7. Shreeji C.H.S. Ltd.
8. Mercury C.H.S. Ltd.
...Respondents
9. State of Maharashtra
WITH
WRIT PETITION NO. 12680 OF 2025
Nitin Nagarji Mehta ...Petitioner
:Versus :
1. Shree Siddhi CHSL
2. Shantabai Budhaji Bhandari
(Deceased)
3. Laxmibai Budhaji Bhandari
(Deceased)
4. Jaywant Budhaji Bhandari
5. Parvati Budhaji Bhandari
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6. Shakuntala Budhaji Bhandari
7. Chintamani Bhaskar Mali
8. Parshuram Ramchandra Shinde
9. M/s. Jaya Enterprises
10. M/s. Vikram Builders Pvt. Ltd.
11. Jiten Zaverchand Gala
12. M/s. Surbhi Rijin Construction
through its Partner
A) Mr. Mitesh B. Shah
B)Mr. Tej M. Shah
13. Shree Jupiter CHS Ltd.
14. Mercury C.H.S. Ltd.
15. State of Maharashtra
through District Deputy Registrar
Co-operative Societies, Mumbai
City(4), the Competent Authority 5A of
the MOFA, 1963 ...Respondents

________________
Mr. S.M. Gorwadkar, Senior Advocate i/b. Mr. Niranjan Mogre, Mr.
Swaraj Savant, Mr. Varun H. Thanawala and Mr. Sohan S. Lande, for the
Petitioners.
Ms. Vishaki Bhatia, for Respondent No.1.
Mr. Hamid Mulla, AGP for State in WP No.12677 of 2025.
Ms. M.S. Srivastav , AGP for State in WP No.12680 of 2025.
________________
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CORAM: SANDEEP V. MARNE, J.
Dated: 28 July 2026.
Judgment:
1) These petitions are filed by the Petitioner-developer
challenging orders dated 22 November 2023 and 2 June 2025 passed by
the District Deputy Registrar, Co-operative Societies, Mumbai City-4 and
Competent Authority ( Competent Authority ) issuing certificates of
unilateral deemed conveyance in favour of Shree Jupiter Co-operative
Housing Society (Shree Jupiter CHSL) and Shree Siddhi Co-operative
Housing Society Ltd. (Shree Siddhi CHSL) thereby conveying the
proportionate land and buildings in their favour.
2)
Smt. Shantabai Budhaji Bharidari and others were the
owners in respect of land bearing original plot No.310 and 308 with
corresponding final plot Nos.488 and part of 478 admeasuring 5448.60
sq.mtrs situated at Village-Eksar, Taluka-Borivali, Mumbai Suburban
District. The Agreement for Sale dated 12 October 1993 was executed by
the owners thereby granting development rights in favour of Mr.
Parshuram Ramchandra Shinde. In respect of another set of land bearing
original plot nos.317 1/2a, 317A, 315A, 311A, 311B, 310, 308, 314, 295
and 296A having corresponding final plot nos. 487A, 485-486A, 480-8,
491, 479-B, 487-A and 519 admeasuring about 15,8100.15 sq.mtrs. The
owners granted development rights to Chintamani Bhaskar Mali and
Parshuram Ramchandra Shinde who formed partnership firm in the
name and style of M/s. Jaya Enterprises. It appears that both the sets of
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land were falling in the Town Planning Scheme and therefore certain
land got reserved for development plan road with permission to the
owners to utilize FSI flowing out of the same.
3)
By Agreement for Sale dated 11 January 1996, Mr.
Prashuram Ramchandra Shinde agreed to sell the first set of land to M/s.
Siddhivinayak Builders, proprietary firm of the Petitioner. Similarly, by
separate Agreement dated 1 June 1991, M/s. Jaya Enterprises agreed to
sell land admeasuring 822 sq.mtrs out of the second parcel to M/s.
Siddhivinayak Constructions, which is also a proprietary concern of the
Petitioner. Both the sets of lands are adjacent to each other. Petitioner
initially planned to construct separate buildings in two parcels of land
and secured separate building permissions. However, in 1997 Petitioner
applied for sanction of a common layout by amalgamating both the lands
and proposed construction of 3 buildings, Building No.1-Shree Siddhi,
Building No.2-Shree Jupiter and Building No.3-New Mercury. According
to the Petitioner, Building No.1 was constructed on land admeasuring
822 sq.mtrs and the same consists of 33 flats and 5 shops. The said
Building No.1 received occupancy certificate on 21 March 1997 and Shree
Siddhi CHSL came to be formed and registered by flats owners thereof.
According to the Petitioner, Building No.2-Shree Jupiter was constructed
on adjacent land admeasuring 1416.50 sq.mtrs and that the building
consists of 30 flats and 15 shops in respect of which Shree Jupiter CHSL
has been formed and registered. According to the Petitioner, Building
No.2- Shree Jupiter does not have an occupancy certificate. Building
No.3-Mercury was planned with 3 wings, A, B and C and Wing-A has
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already been constructed and purchasers of Wing-A of Mercury building
have formed New Mercury-A CHSL (Mercury-A CHSL) .
4) Mercury-A CHSL filed S.C. Suit No. 517 of 2008 in the City
Civil Court, Mumbai for various reliefs including handing over of
possession of flats and for conveyance of land. In that Suit, consent
terms were executed on 18 September 2011 between the Petitioner and
Mercury-A CHSL. According to the Petitioner, the Court Receiver
appointed by the City Civil Court continues to be in possession of the
suit property for getting the balance work constructed. According to the
Petitioner, it has agreed to convey the land beneath Building-Mercury-A
CHSL alongwith permissible FSI of 1541.75 sq.mtrs. to Mercury-A CHSL.
5)
In the light of the above position, Shree Jupiter CHSL filed
Application No. 215 of 2023 before the Competent Authority seeking
conveyance of the land and building in its favour. According to the
Petitioner, it was not served with the notice of the said Application and
that Shree Jupiter CHSL deliberately indicated erroneous address of the
Petitioner. By order dated 22 November 2023, the Competent Authority
has allowed Application No.215 of 2023 filed by Shree Jupiter CHSL and
has conveyed in its favour land admeasuring 1746.47 sq.mtrs plus
proportionate rights in the R.G. area admeasuring 308.20 sq.mtrs
aggregate land of 2054.67 sq.mtrs plus proportionate rights in the road
set back area admeasuring 147.18 sq.mtrs. In pursuance of order dated 22
November 2023, Shree Jupiter CHSL has registered Conveyance Deed on
16 May 2024. Aggrieved by the Order dated 22 November 2023 granting
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deemed conveyance in the favour of Shree Jupiter CHSL, Petitioner has
filed Writ Petition No. 12677 of 2025.
6)
Shree Siddhi CHSL filed Application No. 104 of 2024 before
the Competent Authority seeking deemed conveyance of land and
building. Petitioner appeared in the Application and filed its reply
contending that as per the MOFA Agreement only land admeasuring 822
sq.mtrs could be conveyed in favour of the Society. By order dated 2 June
2025, Competent Authority has allowed Application No. 104 of 2024 and
has conveyed in favour of Shree Siddhi CHSL land admeasuring 1644.89
sq. mtrs (comprising of 1398.16 sq.mtrs of land and proportionate share
in RG area of 246.73 sq.mrts) plus proportionate rights in road set back
area admeasuring 117.83 sq.mtrs. Petitioner has challenged order dated 2
June 2025 passed in favour of Shree Siddhi CHSL by filing Writ Petition
No. 12680 of 2025. By interim order dated 29 September 2025, this Court
has stayed the order dated 2 June 2025 passed in the case of Shree Siddhi
CHSL.
7) Mr. Gorwadkar, learned Senior Advocate appearing for the
Petitioners in both the Petitions submits that the impugned orders
passed by the Competent Authority in favour of both the societies are in
violation of covenants of agreement executed under Section 4 of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963, (MOFA) . That
under Section 4 Agreements executed with the purchasers of flats in the
building of Shree Siddhi CHSL, it was agreed to convey land admeasuring
only 822 sq.mtrs. That the building Shree Siddhi CHSL has been
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constructed only on land admeasuring 822 sq.mtrs whereas the
Competent Authority has erroneously conveyed land admeasuring
1644.89 sq.mtrs to Shree Siddhi CHSL. Mr. Gorwadkar further submits
that in respect of the agreements executed under Section 4 of MOFA with
flat purchasers of Shree Jupiter CHSL, it was agreed to convey only land
admeasuring 1416.50 sq.mtrs as the said building is constructed only on
that portion of land. That therefore it is impermissible to convey land
admeasuring 2054.67 sq.mtrs in favour of Shree Jupiter CHSL. That it is
well settled position that the Competent Authority cannot convey land
contrary to the flat purchase agreement. That Competent Authority
exercises limited jurisdiction of conveying land in accordance with the
flat purchase agreement. That it is impermissible to convey land in
excess of the one agreed under the MOFA Agreement.
8)
Mr. Gorwadkar further submits that the Competent
Authority has grossly erred in allowing the applications of Shree Jupiter
CHSL and Shree Siddhi CHSL societies. He submits that grant of
conveyance in favour of the two societies seriously jeopardises
Petitioner's right to complete construction of Mercury CHSL building. He
submits that so far only Wing-A of Mercury Building is constructed and
that two more wings of the said buildings are yet to be completed. That
virtually no land is left for completion of construction of said two wings
of Mercury Building. He submits that there is already a decree of the
Civil Court in respect of the suit filed by Mercury-A CHSL Building and
that the impugned orders passed by the Competent Authority are
contrary to the said consent terms. That under the consent terms, land
admeasuring 1541.75 sq.mtrs is reserved for only Wing-A of Mercury-A
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CHSL building. That some more land would be needed for construction
of 'B' and 'C' wings of Mercury Building. That however after conveyance
of lands in favour of the two societies land admeasuring 797.57 sq.mtrs
would be left for Mercury Building.
9) Mr. Gorwadkar further submits that even if it is assumed
that the land division can be made contrary to the covenants of the
Agreements for Sale, the same needs to be made on the basis of the
revised plan dated 1 August 2007. He submits that as per the Architect's
Certificate prepared by the Petitioner's Architect-Mandeep Desai &
Associates, Building No.1 ( Shree Siddhi CHSL) is entitled to land
admeasuring 863.26 sq.mtrs, Building No.2 ( Shree Jupiter CHSL) is
entitled to land admeasuring 1078.33 sq.mtrs with their proportionate
shares in the RG as 152.34 sq.mtrs and 190.29 sq.mtrs respectively. He
places reliance on the plan approved on 1 August 2007 and submits that
even if the principles of proportionate land division is to be followed, the
same must be done on the basis of plan dated 1 August 2007. On above
broad submissions, Mr. Gorwadkar would pray for setting aside the
impugned orders passed by the Competent Authority.
10) Per-contra
, Ms. Bhatia the learned counsel appearing for the
Respondent-Society opposes the Petitions. She submits that conveyance
cannot be executed on the basis of land indicated in Section 4
Agreements as the developer has subsequently amalgamated land and
has secured development permission for layout development. That FSI
required for construction of the existing two building of Shree Siddhi
CHSL and Shree Jupiter CHSL Societies has arisen out of larger plot of
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land than the one indicated in Section 4 agreements. She therefore
submits that conveyance cannot be restricted only to the land indicated
in Section 4 Agreements. She submits that proportionate land division
must be done on the basis of plan dated 21 March 1997. That
subsequently prepared plan prepared by the Petitioner is still in draft
stage and that the same is not sanctioned. That in any case, subsequently
prepared plan on the basis of TDR and incentive FSI cannot be the basis
for subdivision of the land. She submits that the Competent Authority
has correctly divided the land in proportion to the BUA used for
construction of building of each of the societies. That Respondent-
Societies were not parties to the suit instituted by Mercury-A CHSL-
Society and therefore the decree passed therein does not bind the
Respondent-Society. That in any case the agreement in the consent
terms is only for conveyance of land beneath Mercury-A CHSL Building.
That therefore most certificates do not violate the consent terms in any
manner. She accordingly prays for dismissal of the Petitions.
11)
I have considered the submissions canvassed by the learned
counsel appearing for the parties. I have also perused the records of the
case filed alongwith the pleadings.
12)
The case involves layout development undertaken by the
Petitioner-Developer. Though originally, rights in respect of separate
pieces of lands were acquired by the Petitioner, it appears that since the
lands were adjacent to each other and since development in
amalgamated lands was more beneficial, Petitioner has amalgamated the
lands for effecting the layout development. However, at the time when
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agreements for sale were executed with the flat purchasers, it appears
that the layout plans were sanctioned. At that time, the Intimation of
Disapproval and Commencement Certificate were issued for construction
of Building No.1 ( Shree Siddhi CHSL) on 20 October 1989. This is a reason
why in the flat purchase agreements in respect of Building No.1 ( Shree
Siddhi CHSL) land admeasuring 822 sq. mts forming part of final plot no.
478 was indicated as the one on which construction of the building was
planned. Therefore in Agreements executed under Section 4 of MOFA
with the flat purchasers of Shree Siddhi CHSL provided for conveyance of
land described only in Third Schedule of the said Agreement. The Third
Schedule of Agreement dated 21 July 1993 executed with the flat
purchasers of Shree Siddhi CHSL read thus:
ALL THAT place and parcel of land, ground hereditaments and premises
bearing Old Final Plot No 479A and New Final Plot No. 478 of TPS III
admeasuring about 822 sq. mts. on the plot of land at Shimpoli Road
Extension, situate, lying and being at Village Eksar, Taluka Borivli in
Registration District and Sub-District of Bombay City and Bombay
Suburban.
13) Similar is the position qua agreements executed with the
flat purchasers of Shree Jupiter CHSL for which Intimation of
Disapproval and Commencement Certificate were issued on 29 November
1995 and 6 May 1996 respectively in respect of land admeasuring only
1416.50 sq.mtrs forming part of final plot no. 488. Therefore, the flat
purchase agreement executed with the members of Shree Jupiter CHSL
provided for conveyance of land described in Second Schedule reads
thus:
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THE SECOND SCHEDULE ABOVE REFERRED TO :
ALL THAT piece or parcel of land lying, being and situated at Village
Eksar, Taluka Borivali, in the Registration District and Sub District of
Bombay City and Bombay Suburban District bearing S. No. 37, Hissa
No4 (pt), C.T.S No. 380, affected by Town Planning Scheme No. Ill
(Final), Borivali (West), Bombay bearing Original Flot No.308 and.
having corresponding Final Plot No 488 admeasuring 1416.50 sq. Mts,
or thereabouts alongwith the benefits of the area affected under T.P,
D.P Road under D.C Rule 10 (2).
14) Referring to the covenants of the flat purchase agreement
executed under Section 4 of MOFA with the members of the two
societies, Mr. Gorwadkar has strenuously contended that only the land
described in the said agreement can be conveyed and that Competent
Authority does not have jurisdiction to convey land in excess of the one
indicated in the Schedules of the said Agreement.
15) However, in the present case, Petitioner did not carry out
construction in accordance with the originally sanctioned plans dated 20
October 1989 for Shree Siddhi CHSL and 24 January 1995 for Shree
Jupiter CHSL. On the other hand, Petitioner took the advantage of
amalgamation of the lands and got sanctioned fresh plans from the
Planning Authority on 21 March 1997. The plan dated 21 March 1997
envisages layout development in respect of amalgamated plot
admeasuring 4590 sq.mts. There is no dispute to the position that
Building Nos.1 and 2 ( Shree Siddhi CHSL) and (Shree Jupiter CHSL) have
been constructed in accordance with the layout plan sanctioned on 21
March 1997. Since it was a layout development, 15% land was deducted
for recreational ground and accordingly the net plot area available for
construction was 3901.50 sq.mtrs. It appears that in the permission
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dated 21 March 1997, FSI 1.00 was sanctioned. Since the land was
328.80 sq.mtrs)
affected by the Town Planning Scheme and some land (
was reserved for DP road, Petitioner got FSI advantage of 328.80 sq.mtrs
in respect of DP reservation and this is how total permissible BUA as per
permission dated 21 March 1997 was 4230.30 sq.mts. In plans submitted
by the Petitioner, which were approved on 21 March 1997, he divided the
available sanctioned BUA of 4230.30 sq.mts as under:
Buildng No.1-Shree Siddhi CHSL 1473.34 sq.mts
Building No.2-Shree Jupiter CHSL 1840.39 sq.mts
Building No.3-Mercury 797.57 sq.mts
16) This is how, out of the available BUA of 4230.30 sq.mtrs,
BUA of 4111.30 sq.mtrs was utilised in construction of the three
buildings. Building No.1-Shree Siddhi CHSL received Occupancy
Certificate on 21 March 1997. It is Petitioner's contention that Building
No.2-Shree Jupiter CHSL is yet to receive occupancy certificate. So far as
building of Mercury-A CHSL is concerned, A-Wing thereof is complete. It
does appear that the entire development potential sanctioned in the
permission dated 21 March 1997 is consumed by the Petitioner.
17) Thus, a unique situation is created in the present case where
the land indicated in Section 4 Agreements executed with the flat
purchasers is lesser than the land required for sustenance of buildings of
both the Respondent-Societies. As observed above, Building No.1- Shree
Siddhi CHSL is constructed with BUA of 1473.34 sq.mtrs whereas the
land indicated in the flat purchase agreement is only 822 sq.mtrs.
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Similarly, the BUA used for construction of Building No.2-Shree Jupiter
CHSL is 1840.39 sq.mtrs whereas the land indicated in the flat purchase
agreements is only 1416.50 sq.mtrs.
18)
When Competent Authority conducts an inquiry under
Section 11 of MOFA, it must have regard to Agreements for Sale executed
under Section 4 of MOFA. The conveyance should ordinarily be in
accordance with the Agreements for Sale. This is clear from the plain
language used under Section 11(3) of MOFA. However, careful reading of
the language used in sub-sections (3) and (4) of Section 11 would
indicate that the Competent Authority also needs to take into
consideration 'all other relevant documents for issuing certificate’. One of
the most vital documents to be considered by the Competent Authority
is the development permission and the sanctioned plans. Consideration
of sanctioned plan assumes importance for division and conveyance of
land in a layout. Thus, while granting certificate of unilateral deemed
conveyance, the Competent Authority needs to have regard to the
sanctioned plans by the Planning Authority. Therefore, the Competent
Authority was required to take into consideration the development
permission dated 21 March 1997 and conveyance could not have been
granted only on the basis of covenants of Section 4 Agreements. Also to
curb the tendencies on the part of the developers in providing for
contractual stipulations in Section 4 Agreements for conveyance of land
contrary to the statutory scheme of MOFA, Section 16 provides that the
provisions of MOFA would override the contrary stipulations of a
contract. Section 16 of the Act provides thus:
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16. Act to be in addition to Transfer of Property Act and to over-ride con-
tract to the contrary.—
The provisions of this Act, except where otherwise provided, shall be in addi-
tion to the provisions of the Transfer of Property Act, 1882 (IV of 1882), and
shall take effect notwithstanding anything to the contrary contained in any
contract.

19)
As observed above, the case involves earmarking of lesser
land in Section 4 Agreements whereas buildings are constructed by
utilizing FSI arising out of larger land than the one indicated in the those
Agreements. If Petitioner was to restrict itself as per covenants of
Agreements for Sale and to construct the buildings strictly in accordance
with the development permissions individually granted to the two
parcels of the land, what Mr. Gorwadkar contends could have been right
and, in such circumstances, conveyance ought to have been strictly in
accordance with the covenants of the Agreements for Sale. However, in
the present case, Petitioner got amalgamated various parcels of land and
has carried out layout development thereby utilizing much larger land
from which FSI required for construction of buildings of the two societies
has arisen. In these circumstances, conveyance cannot be restricted only
to the lands indicated in Section 4 Agreements.
20) In a given case, where the land agreed to be conveyed under
the Flat Purchase Agreement falls short of the land actually required for
sustenance of the building, it is necessary to convey the land which is
taken into consideration by the Planning Authority for construction of
the building. In the facts of the present case, where the developer
subsequently changed the plans by amalgamating the lands and by
effecting layout development on the basis of revised permission dated 21
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March 1997, the original planned development in respect of the two
individual parcels of land no longer remained valid. Therefore, it is
necessary to divide the land in the layout in accordance with the BUA
utilised for construction of each of the buildings. If this is not done, the
same would give undue advantage to the Petitioner. Petitioner has
secured permission dated 21 March 1997 for construction of three
buildings in the layout by utilizing the entire FSI flowing out of the said
land admeasuring 4590 sq.mtrs. Now if only land admeasuring 822
sq.mtrs ( Shree Siddhi CHSL) and 1416.50 sq.mtrs (Shree Jupiter CHSL) is
conveyed, the Petitioner would be left with substantial portion of land
admeasuring 1662.5 sq.mts plus R.G. area of 688.50 sq.mts = 2351 sq.mts.
Conveyance of land admeasuring only 822 sq.mtrs to Shree Siddhi CHSL
and 1416.50 sq.mts to Shree Jupiter CHSL would render their buildings
illegal and provide corresponding undue advantage to the Petitioner. In
my view, therefore the Competent Authority has correctly undertaken
the exercise of proportionate land division by having recourse to the
provisions of GR dated 22 June 2018. The relevant part of the GR reads
thus :
vi) मानीव अभि हस्तांतरणाचे आदेश व प्रमाणपत्र पारीत करताना जिल्हा उपनिनबंधक ,
सहकारी संस्था / सहनिनबंधक , सहकारी संस्था ( जिसडको ) तथा सक्षम प्राधिधकारी यांनी खालील
बाबी निवचारात घेऊन आदेश पारीत करावेत :-
( १ ) एका ूखंडावर अनेक इमारती असतील व प्रत्येक इमारतीची स्वतंत्र सहकारी गृहनिनमा2ण
संस्था असेल आभिण त्यापैकी काही इमारतीचे बांधकाम अपूण2 असल्यास , पूण2 झालेल्या
इमारतीचे मानीव अभि हस्तांतरण करताना अशा संस्थेच्या इमारतीच्या बांधकामाच्या
प्रमाणात ागेचे क्षेत्रफळ (Proportionate area) किंकवा Ground Coverage किंकवा Plinth
area, तसेच मोकळी ागा , सामुदाधियक सेवा सुनिवधा , रस्ते यांचेवर बांधकामाच्या प्रमाणात
अनिव क्त निहस्सा (Undivided share) वनिहवाटीचा हक्क द्यावा .
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21)
After taking into consideration the BUA uitlised in
construction of the three buildings, the Competent Authority has
determined percentage share of each of the three buildings in the land as
under:
Determination of Percentage Share as under:
1 Share in Built Up Area of Building No.1 [Shree Siddhi CHSL] 35.84
[1473.34/4111.3 x 100]
2 Share in Built Up Area of Building No.2 [Shree Jupiter CHSL] 44.76
[1840.39/4111.3 x 100]
3 Share in Built Up Area of Building No.3 19.40
[797.57/4111.3 x 100]
TOTAL 100.00%
22) Thereafter, the Competent Authority has determined
proportionate rights in the plot area, R.G. area and in the road set back
area as under :
Determination of Proportionate Rights in Balance Plot Area as under:
1 Share in Built Up Area of Building No.1 [Shree Siddhi
CHSL]
[1473.34/4111.30 x 3901.50]
1398.16 sq.mts.
2 Share in Built Up Area of Building No.2 [Shree
Jupiter CHSL]
[1840.39/4111.30 x 3901.50]
1746.47 sq.mts.
3 Share in Built Up Area of Building No.3 756.87 sq.mts.
[797.57/4111.30 x 3901.50]
TOTAL 3901.50 sq.mts.
Determination of Proportionate Rights in R.G. Area as under:
1 Share in Built Up Area of Building No.1 [Shree Siddhi
CHSL]
[1473.34/4111.30 x 688.50]
246.73 sq.mts.
2 Share in Built Up Area of Building No.2 [Shree 308.20 sq.mts.
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Jupiter CHSL]
[1840.39/4111.30 x 688.50]
3 Share in Built Up Area of Building No.3 133.57 sq.mts.
[797.57/4111.30 x 688.50]
TOTAL 688.50 sq.mts.
Determination of Proportionate Rights in Road set back Area as under:
117.83 sq.mts.
1 Share in Built Up Area of Building No.1 [Shree Siddhi
CHSL]
[1473.34/4111.30 x 328.80]
147.18 sq.mts.
2 Share in Built Up Area of Building No.2 [Shree
Jupiter CHSL]
[1840.39/4111.30 x 328.80]
3 Share in Built Up Area of Building No.3 63.79 sq.mts.
[797.57/4111.30 x 328.80]
TOTAL 328.80 sq.mts.
23)
The Competent Authority has accordingly conveyed the land
coming to the share of the two societies in the main plot, as well as
proportionate undivided right in the R.G. area and proportionate right in
the road set back area. The exercise undertaken by the Competent
Authority appeals to this Court.
24)
Mr. Gorwadkar has submitted that conveyance of land by
the Competent Authority in favour of the Respondent-Societies
prejudices his right to construct Building No.3 comprising of 3 wings. It
appears that as per the land division done by the Competent Authority,
the land that remains for construction of Building No.3 in the main plot
in 756.87 sq.mtrs in addition to undivided right in R.G. area of 133.57
and proportionate rights in road set back area of 69.79 sq.mtrs.
Petitioner can accordingly complete construction of plot no.3 on the
basis of the said three entitlements.
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25) Mr. Gorwadkar invites my attention to the plan dated 1
August 2007 and submits that construction of Building No. 3 is to be
completed in accordance with the said plan sanctioned on 1 August 2007.
Ms. Bhatia has submitted that the said plan is merely a draft plan which
has not been sanctioned. On the other hand, Mr. Gorwadkar has placed
on record certain documents in support of his contention that the plan is
actually sanctioned. I do not wish to delve deeper into the controversy
and I proceed on an assumption that the plan dated 1 August 2007 is
sanctioned by the Planning Authority. Perusal of the said plan would
indicate that the Petitioner has added some additional FSI of 1217.70
sq.mtrs as well as FSI under the TDR/DRC of 1220 sq.mtrs. This is now
the total sanctioned BUA as per earlier permission dated 21 March 1997
of 4230.30 sq.mtrs has now jumped to 6658.71 sq.mtrs. From earlier FSI
of 1.00 now the FSI sanctioned/used in permission dated 1 August 2007
is 1.70. Therefore, Building No.3 is now proposed to be constructed with
BUA of 3343.49 sq.mtrs. Earlier Building No.3 was proposed to be
constructed with BUA of 797.57 sq.mtrs. Thus, there is almost 400%
increase in respect of Building No.3 in the revised permission dated 1
August 2007.
26)
It is Mr. Gorwadkar's contention that even if the land area
indicated in Section 4 Agreements is to be ignored and the principle of
proportionate land division is to be followed as per the G.R. dated 22
June 2018, the land division must be made in accordance with the plan
dated 1 August 2007. He has accordingly placed on record Architect's
certificate dated 25 June 2026 which is prepared on the basis of plan
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dated 1 August 2007. As per the said Certificate, the sub-division of the
land for the two societies is indicated thus:
FSI details asper layout plan dated 01/08/2007
Statement Area as per plan
Total plot Area 4590.00 sq.mts.
Deductions NIL
Net Plot Area 4590.00 sq.mts.
R.G. Area 688.50 sq.mts.
Balance Plot Area 3901.50 sq.mts.
Built Up Area of Building No.1 Approved in 1473.34 sq.mts.
CE/7974/BP(WS)AR
Built Up Area of Building No.2 Approved in 1840.39 sq.mts.
CE/9373/AR(G+7)
Built Up Area of Building No.3 Approved in 3343.49 sq.mts.
CE/9374/BP(G+7)(WS)AR
Total Built up Area proposed 6658.71 sq.mts.

Proportionate right in balance plot area :
Proportionate rights of Building No. 1 863.26 sq.mts.
[1473.34/6658.71x 3901.50]
Proportionate rights of Building No. 2 1078.33 sq.mts.
[1840.39/6658.71x 3901.50]
Proportionate right in balance R.G. area as under :
Proportionate rights of Building No. 1 152.34 sq.mts.
[1473.34/6658.71x 688.50]
Proportionate rights of Building No. 2 190.29 sq.mts.
[1840.39/6658.71x 688.50]
27) Thus, the Architect's Certificate dated 25 June 2026 relied
upon by the Petitioner is based on plan dated 1 August 2007 which
envisages construction of Building No.3 with BUA of 3343.49 sq.mtrs
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which is 400% more than the originally planned BUA of 797.57 sq.mtrs in
the permission dated 21 March 1997. It is impermissible to take into
consideration subsequently sanctioned layout plan of 1 August 2007
since the buildings of the two Respondent-Societies are not constructed
in accordance with that plan. In the present case, the land division needs
to be done on the basis of sanctioned layout plan of 21 March 1997 based
on which buildings of the two societies are constructed. The builder
cannot indefinitely delay conveyance in favour of organization of flat
purchasers and go on milking additional FSI benefits flowing out of
unconveyed land for the purpose of putting up additional constructions
in the layout. In the present case, the occupancy certificate of Shree
Siddhi CHSL has been issued on 21 March 1997 and the said society is
registered on 10 October 1996. Similarly, Shree Jupiter CHSL is registered
on 10 January 2005. Under Section 11(1) of MOFA read with Rule 9 of
MOFA Rules, it was the statutory duty of the Petitioner to convey land
and building in favour of the two societies within 4 months of formation
of the societies. Petitioner has failed to discharge the said obligation and
has thereafter submitted revised layout plans on 1 August 2007. Thus
what Petitioner is attempting to do in the present case is to derive
benefits flowing out of land meant to be conveyed to the two societies
and use the same for his own profiteering. This cannot be countenanced
within the statutory framework of MOFA. If any additional FSI advantage
is available in respect of the land which is supposed to be conveyed to
the two Respondent-Societies, that advantage belongs to those societies.
A developer cannot be permitted to delay conveyance for eternity and go
on adding additional constructions in the layout. Even within the same
FSI regime, a developer cannot be permitted to take benefit of additional
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BUA becoming sanctionable due to amendments or due to issuance of
notifications, circulars, etc and then insist that the land division must be
in accordance with the revised sanctioned plans. In the present case,
even during the same FSI regime of t he Development Control
Regulations-1991, Petitioner has sought to take advantage of
permissibility to load TDR and additional FSI which became available in
the year 2008 by delaying conveyance of land in favour of Respondent-
Societies for a considerable period of time. The land was required to be
conveyed within 4 months of formation of the two societies. Petitioner
however deliberately delayed such conveyance and applied for revised
permissions to put up additional construction in the layout. Such
tendency on the part of the developers need to be curbed and which
infact is the legislative objective behind Section 4, Section 11 of MOFA
and Rules 4, 5 and 9 of MOFA Rules. In my view therefore the land
division cannot be in accordance with subsequently sanctioned plan
dated 1 August 2007.
28) Mr. Gorwadkar has also relied upon consent terms executed
with Mercury-A CHSL for contending that the impugned orders of
Competent Authority would violate the consent decree passed as per the
said consent terms. It appears that the consent terms are filed in S.C.
Suit No. 517 of 2008 which was filed by Mercury-A CHSL. In the Suit, only
the Petitioner and his proprietary concern were the Defendants. The two
Respondent-Societies were not impleaded as party defendants. It appears
that the flat purchasers of A-Wing of New Mercury building were
aggrieved by non-completion of construction of the building and non-
handing over of possession of their flats. Under the consent terms, the
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Petitioner agreed to complete the construction and to handover
possession of flats to the members of that societies. In para-13 of the
consent terms, it is agreed as under:
13. The defendants themselves, its proprietor partner administrator
assignee's and/or any person or persons claim through or under the
defendants do hereby convey transfer, sold, give-up, relinquish, assign
all their right, title, interest, claim over the building known as "A" now
known as New Mercury "A" Co-op Hsg Soc. Ltd. situated at the plot No.
748 & 448 Siddhivinayak Complex, Near Joggers Park, Chicku Wadi,
Borivali. (W), Mumbai - 400 092. The building along with the land
admeasuring permissible FSI area of 1541.75 Sq. Mtrs. which is the part
of total land admeasuring 4590,00 Sq. Mtrs, bearing Survey No. 37 Hissa
No. 4. Pt CTS No. 380, TPS III, Borivali West, original plot number 308
and 308A, and final plot number 488, and part of final plot number 478,
TPS III, Borivali West, village Eksan Taluka Borivali Mumbai Suburban
Dist Reg Dist Bandra Mumbai City to the plaintiff society forever. It is
further agreed that Court Receiver will make arrangements of survey
ể
and demarcation of  th said plot of land as mentioned in the schedule
hereunder written within  3 months from the date of consent terms
with the help of defendants,
29)
Thus, what was agreed by the Petitioner behind the back of
the two Respondent-societies was to convey only the New Mercury-A
building alongwith permissible FSI area of 1541.75 sq.mtrs. Para-13 of
the consent terms do not indicate that land admeasuring 1541.75 sq.mtrs
has been agreed to be conveyed in favour of the Plaintiff-Society. Even in
the memo of Petitions, Petitioner himself has pleaded that he is under
obligation to convey the land beneath Mercury Building and FSI of
1541.75 sq. mtrs. under the consent terms. It is therefore difficult to
accept the contention that the impugned orders passed by the
Competent Authority contravenes the consent terms in any manner.
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30)
Considering the overall conspectus of the case, I am of the
view that there is no warrant for interference in the impugned orders
passed by the Competent Authority. Even after registration of
conveyances in pursuance of the impugned orders, Petitioner would still
be left with land admeasuring 756.87 sq.mtrs in the main plot, undivided
share of 133.57 sq.mtrs in R.G. area and road set back area of 63.79
sq.mtrs. If it is possible to carry out any further construction on the
balance land, in addition to Mercury-A CHSL Building already
constructed, it will be for the Petitioner to get the plans sanctioned from
the Planning Authority in respect of the balance portion of land in the
layout. Respondent-Societies can obviously not object to such
construction since the proportionate land in the layout is being conveyed
in their favour.
31) The impugned orders appear to my mind to be
unexceptionable. Writ Petitions are devoid of merits. The Writ Petitions
are accordingly dismissed. There shall be no order as to costs.
Digitally
signed by
NEETA
SHAILESH
SAWANT
Date:
2026.07.30
20:21:19
+0530
NEETA
SHAILESH
SAWANT
[SANDEEP V. MARNE , J.]
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