Vardhman Nagar Cooperative Housing Society Limited vs Kent Heights Coopertive Housing Society Limited And Ors

CNR No : HCBM010432242025

2026:BHC-AS:43040
Neeta Sawant
WP NO 11312 of 2025

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11312 OF 2025
Vardhman Nagar Co-operative Housing
...Petitioner
Society Limited
: Versus :

1. Kent Heights Co-operative Housing Society
Limited
2. M/s. Bharat Engineering Construction
Company
3. Rasiklal A. Shah
4. Dineshchandra H. Bhatviya
5. Sudhir V. Gandhi
6. Usha V. Aalwani
7. Pragnyavati C. Shah
8. District Deputy Registrar, Co-operative
Societies, Mumbai City (4)
...Respondents
Mr. Mayur Khandeparkar with Mr. Amogh Singh, Mr. Devansh Shah, Mr.
Santosh Pathak and Mr. Harsh Tripathi i/b. Law Origin, for the Petitioner.
Mr. Karl Tamboly with Mr. Viraj Parikh, Mr. Jahan Setalvad and Ms.
Smrithi Pillai i/b. Mr. Dharmesh S. Jain, for Respondent No.1.
Ms. S. D. Chipade, AGP for Respondent No.8-State.
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CORAM: SANDEEP V. MARNE, J.
Judgment Reserved on : 7 OCTOBER 2026.
Judgment Pronounced on: 22 OCTOBER 2026.
JUDGMENT:
1) Two cooperative housing societies in a layout have locked
horns over sharing of layout land for conveyance purpose. Petition raises
issues of vital importance relating to the rights of organisations of flat
purchasers to secure conveyance of land in a layout development. One of
the issues involved is whether a decree envisaging conveyance of an
unspecified area of land secured by one of the societies in the layout
would permanently debar it from seeking its rightful land entitlement in
the layout and whether execution of conveyance deed by the promoter
after such decree, conveying land less than society’s entitlement under
the law, can result in a windfall gain for the other society to claim
conveyance of the entire balance layout land, which is not lawfully due to
it? Also involved is the issue as to whether the conveyance deed executed
post the decree is attributable to execution of the decree or is a mere
voluntary arrangement between the promoter and the Plaintiff-society.
The Petition also raises the issue as to whether the principle of
proportionate land division of the layout land needs to be given a
complete go-bye merely because one of the society has secured a vague
decree directing the promoter to convey his title in the land, without
adjudicating the competing claims between two societies about
distribution of layout land. Without prejudice, the Petitioner has also
contended that the principle of land division proportionate to built-up
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area utilized in each building cannot be followed in the instant case as
the building of Respondent No.1-society is constructed by use of
TDR/incentive FSI and that what can be conveyed to it is only the land
proportionate to the inherent/base FSI used in its construction.
T HE C HALLENGE
2) The Petitioner-Society has filed the present Petition
challenging order dated 9 June 2025 passed by the District Deputy
Registrar, Co-operative Societies, Mumbai City-4 and Competent
Authority (Competent Authority) granting certificate of unilateral
deemed conveyance of land admeasuring 4497.58 sq.m. to it. Petitioner
is aggrieved by the area of land conveyed to it vide certificate dated 9
June 2025 and insists that it is entitled to secure conveyance of the entire
balance land in the layout after deducting area of 2040 sq.mts conveyed
to Respondent No.1-society. Petitioner is also aggrieved by the liberty
granted to Respondent No.1-society to seek conveyance of additional
area of 1863.13 sq.m. ( over and above area of 2040 sq.mts already
conveyed) . According to the Petitioner, since Respondent No.1-society
has secured conveyance of land admeasuring 2040 sq.m. through
execution of decree passed in its favour, it is not entitled to conveyance
of any additional area and that the balance plot area must necessarily be
conveyed to the Petitioner-society.
3) This is a competing claim between two housing societies
formed by purchasers of flats in buildings constructed as a part of layout
development over sharing the land in the layout for conveyance.
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Petitioner-society has 4 separate buildings and 8 wings constructed as
per the originally sanctioned plan. Respondent No. 1-society was formed
in respect of a building constructed subsequently as per the revised plan.
Respondent No. 1 wants share in the layout land in proportion to the
built-up area used in construction of its building and the Competent
Authority has upheld this entitlement of Respondent No. 1-society.
Petitioner is opposed to proportionate land division contending that the
building of Respondent No. 1-society is constructed by use of
TDR/incentive FSI and that it has already secured conveyance of land
admeasuring 2040 sq. m. through execution of decree passed by Civil
Court and that therefore the balance land in the layout must be conveyed
to it.
ACTS
F
4) A larger property situated at Survey No.47, Hissa No.1 (part)
of Village-Malad, Taluka-Borivali, Mumbai Suburban District at Narsing
Lane at Malad (West), Mumbai - 400 064 admeasuring 10,216 sq.m. was
purchased by Respondent Nos.3 to 6 vide registered Conveyance Deed
dated 23 August 1971. The land owners/Respondent Nos.3 to 6 granted
development rights in respect of the larger property to Respondent No.2,
which was a partnership firm formed by the original land owners.
Subsequently, the plot area of the larger property was reduced to 9108.10
sq.m. and Respondent No.2 submitted plans for construction of a
building on the larger property. During 1972 to 1976, Respondent No. 2
constructed four separate buildings comprising 8 wings and executed
agreements under Section 4 of Maharashtra Ownership Flats (Regulation
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of the promotion of construction, sale, management and transfer) Act,
1963 (MOFA) for sale of flats constructed therein. Final Occupation
Certificate (OC) in respect of those buildings was issued on 30 May 1979.
It is the case of the Petitioner that out of the total sanctioned built-up
area (BUA) of 7,710.65 sq.m., BUA of 6,730.38 sq.m. was utilised in
construction of those 4 buildings and the balance inherent BUA left was
only 980.27 sq.m.
5) On 16 March 1994, the original land owners sold the larger
property to one Vasant Khetani, who thereafter sold the same to one
Kent Real Estate Pvt. Ltd. (Kent) on 22 August 1995. Kent approached
the Petitioner-society for completion of balance development on the
larger property by loading TDR. An agreement dated 17 October 1995
was executed between Petitioner-society and Kent, under which
Petitioner permitted Kent to consume FSI in respect of the larger
property to the extent of 52,000 sq. ft., equivalent to 4,830 sq.m.
including the balance FSI, TDR and staircase FSI. The limit of 40% of
permissible loadable TDR was imposed on Kent. Kent paid consideration
of Rs. 40,00,000/- to the Petitioner for utilising TDR upto 40%,
Rs.11,00,000/- towards full and final settlement of accounts of the
original land owners and Rs.15,30,000/- for right to utilise 1700 sq.ft. of
staircase and lift FSI. Under the Agreement, it was agreed that if further
FSI became available, Kent was to secure fresh consent of the Petitioner-
society in writing. It was also further agreed between the parties that the
flat purchasers of the new building would be enrolled as members of the
Petitioner-society.
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6) Kent accordingly constructed building of Respondent No.1-
society and executed individual Agreements for Sale with the flat
purchasers in which a specific covenant was included for flat purchasers
becoming the members of the Petitioner-society. The flat purchase
agreements also contained a covenant for conveyance of the entire
property in favour of the Petitioner-society.
7) Respondent No.1-society filed L.C. Suit No. 1748 of 2003
against Kent, Petitioner-society and MCGM inter alia seeking directions
for completion of the building, for securing OC, as well as for conveyance
of land and the building. On 31 July 2008, L.C. Suit No. 1748 of 2003 was
partly decreed, directing Kent to complete Society’s building and obtain
an OC and a Completion Certificate and to convey Kent’s right, title and
interest in the land and the building to Respondent No.1-society. The OC
in respect of Kent’s building was issued on 23 October 2008, which
revealed that Kent utilised BUA of 6,899.37 sq.m. for construction of
Respondent No.1-society.
8) Respondent No.1-society took out Execution Application
No. 73 of 2009 under Order XXI Rule 34 of Code of Civil Procedure, 1908
(Code) for execution of decree dated 31 July 2008. According to the
Petitioner, towards execution of the decree, Kent and Respondent No.1
executed and registered a conveyance deed in respect of land
admeasuring 2,040 sq.m.
9) Petitioner-society filed Application dated 3 July 2020 under
Section 11(3) of MOFA seeking conveyance of land admeasuring 10,216
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sq.m. The Competent Authority passed order dated 30 March 2021,
allowing the application of Petitioner-society and granted conveyance of
land admeasuring 6,748.33 sq.m. Respondent No.1-society filed Writ
Petition No. 8688 of 2021 challenging order dated 30 March 2021 and the
proceedings were remanded to the Competent Authority for fresh
adjudication. In the remanded proceedings, parties filed additional
pleadings. On 9 June 2025, the Competent Authority has passed the
impugned order granting deemed conveyance of land aggregating
4,497.58 sq.m. to the Petitioner. The Competent Authority has held that
Respondent No.1 shall be entitled to secure conveyance of additional
area of 1,863.12 sq.m. by filing separate application for deemed
conveyance. Aggrieved by the order dated 9 June 2025, Petitioner-society
has filed the present Petition raising the grievance that it is actually
entitled to secure conveyance of entire balance portion of land after
deducting area admeasuring 2,040 sq.m. already conveyed to Respondent
No.1.
S UBMISSIONS

10) Mr. Khandeparkar, the learned counsel appearing for the
Petitioner submits that the Competent Authority has grossly erred in
undertaking the exercise of proportionate land division, which principle
is wholly inapplicable in the facts of the present case, on account of both,
the use of TDR/incentive FSI as well as on account of conveyance of land
of 2040 sq. mt. already executed in favour of Respondent No. 1 through
execution of decree. That the cause of action for Respondent No.1 to
seek conveyance has already been adjudicated upon by a Civil Court of
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competent jurisdiction culminating into decree dated 31 July 2008. That
it is trite law that when a suit as to immovable property has been decreed
but the property ( including the area ) has not been definitely identified,
the question as to how much area Plaintiff is entitled to conveyance of
can be decided under Section 152 of the Code by the Court which passes
the decree or under Section 47 by the Executing Court. In support, he
relies on judgments of the Apex Court in Pratibha Singh and Anr. vs.
1
Shanti Devi Prasad and Anr.
11) Mr. Khandeparkar further submits that in the present case,
Respondent No.1-society applied for execution of the decree under
Order XXI Rule 34 of the Code and therefore the issue can also be
decided under Section 47 of the Code, which uses the phrase “and not by
separate suit”. That in the execution proceedings, notice was issued to
the Petitioner-society along with draft conveyance deed. Accordingly,
Respondent No.1 has accepted area of 2040 sq.m. by securing conveyance
through execution of the decree. That therefore Respondent No.1-
society’s cause of action to seek conveyance ( including the quantum of
area ) stood merged into the decree which in turn stands satisfied. That
the cause of action does not survive and therefore filing of application
for conveyance before the Competent Authority would be barred by the
principles of res judicata and/or cause of action estoppel. There is
nothing like ‘ continuous wrong ’ which permits Respondent No.1 to travel
beyond the scope of Section 47 of the Code before a completely different
forum.
1
(2003) 2 SCC 330
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12) Mr. Khandeparkar further submits that execution and
registration of conveyance clearly indicates absence of ‘ failure’ on the
part of the promoter within the meaning of Section 11 of MOFA, which is
jurisdictional fact for the Component Authority to exercise its
jurisdiction. In support of his contention of non-occurrence of failure, he
relies on judgment of this Court in Nahar Builders Ltd. and Ors. vs.
2
Orchid Enclave CHSL and Ors. That therefore grant of liberty by the
Competent Authority in the impugned order is clearly erroneous. In
support of his contention of merger of cause of action, Mr. Khandeparkar
relies on judgments of the Apex Court in State of U.P. vs. Nawab
3 4
Hussain , Vishnu Vardhan vs, State of U.P. , Bhanu Kumar Jain vs.
5
Archana Kumar and Anr. , and Hope Plantations Ltd. vs. Taluk Land
6
Board, Peermade & Anr.
13) Mr. Khandeparkar further submits that reliance by
Respondent No.1 on Agreement dated 17 October 1995 executed
between Petitioner and Kent is based on a complete misreading of the
same. That Agreement was a package deal for admission of flat
purchasers of the new building as Petitioner’s members and conveyance
of entire larger property in favour of the Petitioner-society. Respondent
No.1-society cannot cherry-pick and place reliance on only one
portion/term of the Agreement while conveniently choosing to ignore
the remaining part.
2
Civil Writ Petition No. 6063 of 2026 decided on 28 July 2026
3
(1977) 2 SCC 806
4
2025 SCC OnLine SC 1501
5
(2005) 1 SCC 787
6
(1999) 5 SCC 590
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14) Mr. Khandeparkar further submits that the impugned order
of the Competent Authority relies on GR of 2018 which has no
application to the facts and circumstances of the present case. That the
case involves adjudication of rights of Respondent No.1-society by Civil
Court by culminating into a registered Deed of Conveyance. That the GR
does not override decree of the Court or registered conveyance deed.
That the formula of proportionate land division contemplated in the GR
cannot be applied in the present case since the two buildings are
constructed with different FSI norms. In support, he relies on judgment
of this Court in M/s. Radha Vishweshwar CHSL and Anr. vs. M/s. New
7
Bansi Park CHSL & Ors. That the concept of TDR was not introduced
when Petitioner’s building was constructed and the same was
subsequently introduced when building of Respondent No.1 was being
constructed. He submits that Petitioner’s buildings have BUA of 6730.38
sq.m. constructed as per DCR, 1967 by utilising base FSI whereas
building of Respondent No.1-Society has BUA of 6899.37 sq.m.
constructed under DCR, 1991 by using base FSI of only 980.27 sq.m. and
TDR/incentive FSI.
15) Mr. Khandeparkar further submits that the buildings of the
Petitioner-society are over 42 years old and are in urgent need of going
for redevelopment. That Petitioner-society is desirous of availing the
benefit of Regulation 33(9) of Development Control and Promotion
Regulations for Greater Mumbai, 2034 (DCPR) which requires minimum
land area of 6000 sq.m. That if the impugned order is upheld, Petitioner
would receive conveyance of only land admeasuring 4497.58 sq.m.,
7
Interim Application No.5322 of 2025 decided on 15 October 2025
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rendering it ineligible to avail the benefit of cluster redevelopment. He
submits that by applying the principles laid down in Radha
Vishweshwar (supra), Petitioner-society is entitled to conveyance of area
admeasuring 6730.38 sq.m. in addition to RG area of 1360.70 sq.m. Mr.
Khandeparkar accordingly prays for setting aside the impugned order
passed by the Competent Authority.
16) The petition is opposed by Mr. Tamboly, the learned counsel
appearing for Respondent No.1-society. He submits that the impugned
order passed by the Competent Authority is perfectly in order, which
ensures proportionate land division by considering the BUA utilised in
construction of each of the buildings. He submits that the Civil Court
has not adjudicated area entitlement of Respondent No.1. He explains
the context in which the Suit was filed, which was not limited only to
grant of conveyance. That the suit was filed for adjudication of disputes
between the developer and Respondent No.1 and not for adjudication of
disputes relating to land entitlement between the Petitioner and
Respondent No.1. He submits that what is executed under the Deed of
Conveyance is a mere consensual and voluntary arrangement. That Deed
of Conveyance is not executed in execution of the decree as falsely
suggested. That even the Executing Court has not determined land
entitlement of Respondent No.1-society.
17) Mr. Tamboly submits that this is not an ordinary dispute
between the two societies since the Petitioner has monetised the
development potential of the property by permitting the construction of
the building of Respondent No. 1. Having sold the development potential
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of the land by permitting the loading of TDR and incentive FSI, the
Petitioner cannot contend that the conveyance of land to the building of
Respondent No. 1 should be restricted to the land corresponding to the
inherent FSI of 980.27 sq. m. That the case is squarely covered by
judgment of this Court in Satellite Garden I CHSL vs. State of
8
Maharashtra since there is express written consent by the Petitioner in
the facts and circumstances of the present case.
18) Mr. Tamboly further submits that the Competent Authority
has applied its mind to all the relevant considerations. That the exercise
of proportionate land division undertaken by the Competent Authority is
in accordance with the GR of 2018. That Petitioner’s plea of estoppel and
res judicata based on 2008 judgment and 2013 conveyance is baseless.
That the 2013 conveyance is not executed in pursuance of any
adjudication and that therefore no Court has put its seal on the
conveyance of 2040 sq.m. That the judgment in Nahar Builders (supra)
actually assists the case of Respondent No.1. That the land of 2040 sq.m.
is only the plinth land and appurtenant land, which does not include
share in the RG and other common amenities. That if case of the
Petitioners is accepted, Respondent No.1 would not be left with any
rights in the RG and internal roads. If Respondent No.1 is confined to
plinth and appurtenant area, Petitioner must also receive same
treatment.
19) That the principle of estoppel does not apply and in support,
he relies on judgments of this Court in Prestige Garden A-1 CHSL vs.
8
2026:BHC-AS:37837
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9
State of Maharashtra , Haroon Hussain Khatri vs. Competent

10
Authority & District Deputy Registrar and Rohini Gupta vs. District
11
Deputy Registrar, Co-operative Societies . He submits that Petitioner
cannot seek conveyance of balance area if what is conveyed to
Respondent No.1-society is not as per its entitlement under the law. In
support, he relies on judgment of this Court in Kuber Kartik New Link
12
Road Premises Co-op. Society Ltd. vs. District Deputy Registrar . That
in the present case, Respondent No.1 has not approached the Competent
Authority and Petitioner has invited adjudication of land entitlement
from the Competent Authority. That therefore principles of res judicata
or estoppel do not have any application. Lastly, Mr. Tamboly submits
that since the impugned order results in proportionate division of the
layout land, this Court may not exercise jurisdiction under Article 227 of
the Constitution of India. In support, he relies on judgment of the Apex
13
Court in Garment Craft vs. Prakash Chand Goel . Relying on judgment
14
of the Apex Court in M.S. Sanjay vs. Indian Bank , Mr. Tamboly submits
that even if legal formulation sought to be suggested by the Petitioner is
accepted to be correct, still this Court need not exercise extraordinary
jurisdiction under Article 226 and 227 of the Constitution of India to
disturb the arrangement which ultimately results in doing substantial
justice between the parties. Mr. Tamboly prays for dismissal of the
Petition.
9
2024 SCC Online Bom 5625
10
2026:BHC-AS:25183
11
2026:BHC-AS:36937
12
Writ Petition No.7620 of 2026 decided on 19 June 2026
13
(2022) 4 SCC 181
14
2025 SCC Online SC 368
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EASONS AND NALYSIS
R A
20) Petitioner and Respondent No.1 are the two housing
societies formed in respect of the buildings constructed in the same
layout and who are at loggerheads for dividing the layout land for
conveyance purposes. Petitioner-society has succeeded in Deemed
Conveyance Application No.94 of 2020 and has secured conveyance of
land aggregating 4497.58 sq.m., out of the total layout land admeasuring
9108.10 sq.m. It is however not satisfied with the quantum of area
conveyed in its favour and believes that after deducting land area
admeasuring 2040 sq.m. already conveyed in favour of Respondent No.1-
society, the balance land admeasuring 7068 sq.m. must come to its share.
On the other hand, it is the contention of Respondent No.1-society that
it is entitled to proportionate share in the layout land on the basis of
BUA utilised in construction of its building.
O RDER OF THE C OMPETENT A UTHORITY
21) In Petitioner’s application for deemed conveyance, the
Competent Authority has undertaken the exercise of land division
proportionate to the BUA utilised in construction of buildings of the two
societies and has apportioned their shares in the land by holding as
under:
xi. In conclusion, after a meticulous review of the Applicant’s submissions,
Opponent No.7’s objections, architect certificates, this Authority determines
that the Applicant, Vardhaman Nagar Co-operative Housing Society Ltd., is
entitled to the deemed conveyance for the land admeasuring 4497.58 sq.
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meters as above out of total 9108.10 sq. meters land bearing Survey No.47,
Hissa No. 1 (part), and CTS Nos. 484 and 484/1 to 17, located at Narsing Lane,
Malad (West), Mumbai – 400064, adjusted from the earlier granted/ordered
6748.33 square meters. This entitlement is formalized through registration
pursuant to the order dated March 30, 2021, and remains valid, aligning with
their possession since 1987 and statutory rights under MOFA, 1963, against
BECC’s failure to convey.
xii. The following table is confirmed by the Architect.
Society Net-plot Area RG Area SM Set-back Plot-Area as per
Name SM Area SM PRC SM
Applicant 3807.52 671.91 18.15 4497.58
Opponent 3903.13 688.79 18.60 4610.52
No.7
TOTAL 7710.65 1360.70 36.75 9108.10
22) Thus, the Competent Authority has determined entitlement
of Petitioner-society of land admeasuring 4,497.58 sq.m. and that of
Respondent No.1 as 4,610.52 sq.m. Accordingly, it has conveyed land
admeasuring 4,497.58 sq.m. to the Petitioner, which is distributed as
3,807.52 sq.m. of net plot area, proportionate share in RG area of 671.91
sq.m. and proportionate share in set-back area of 18.15 sq.m.
23) Since Respondent No.1-society is held entitled for
conveyance of land admeasuring 4610.52 sq.m. ( which is distributed as
net plot area of 3,903.13 sq.m., RG area of 688.79 sq.m. and set-back area
of 18.60 sq.m. ), the Competent Authority has granted liberty to the
Respondent to file an application for deemed conveyance of balance
portion of land totally aggregating 2570.52 sq.mts ( distributed as1863.13
sq.mts of net plot, R.G. area of 688.79 sq.mts and set back area of 18.60
sq.mts). The Competent Authority has held in para-28(xiii) of the order
as under:
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xiii. The Applicant is entitled to retain only 3807.52 sq. meters out of the
6748.33 square meters already granted/conveyed vide early order, towards its
net-plot area entitlement. The Opponent No.7 has already been conveyed in
2040 sq. meters area. Accordingly, Opponent No.7 shall be entitled to an
additional area of 1863.13 sq. meters-being the difference between 3903.13 sq.
meters (total entitlement) and 2040 sq. meters (already considered)-towards
its net plot area entitlement, subject to the submission of a separate Deemed
Conveyance application by Opponent No.7 in respect of the said area. The RG
Area of 1360.7 sq.meters shall be continued to be shared in proportion to 49.38
: 50.62 between Applicant and Opponent No.7 societies, or each will be
respectively entitled to 671.91 sq. meters and 688.79 sq. meters exclusively
towards and as RG Area. Similarly, the Set-back Area of 36.75 sq. meters shall
continue to be shared in proportion to 49.38 : 50.62 between Applicant and
Opponent No. 7 societies, or each will be respectively entitled to 18.15 sq.
meters and 18.60 sq. meters exclusively towards and as Set-back Area.
24) The Competent Authority has determined Petitioner’s
entitlement for deemed conveyance as under:
29. Therefore, in view of the aforesaid orders of the Hon’ble High Court and after
going through all the documents submitted by the concerned parties and, I am of
the opinion that the Applicant Society is entitled to get the unilateral conveyance of
the land admeasuring 3807.53 square meters plus undivided share of RG area
admeasuring 671.91 square meters plus 18.15 square meters Set back area
aggregating to 4497.58 square meters, being Survey No.47, Hissa No.1 (part), and
CTS Nos.484 and 484/1 to 17 of Village Malad, Taluka-Borivali, in Mumbai
Suburban District.
25) The Certificate of unilateral deemed conveyance issued by
the Competent Authority in favour of the Petitioner-society reads thus:
In exercise of the powers conferred on me U/s 5 (A) of the Maharashtra
Ownership Flats Act, 1963, I, Rajesh Lovekar, Competent Authority & District
Deputy Registrar, Co-operative Societies, Mumbai City (4), hereby certify that
“Vardhaman Nagar Co-operative Housing Society Ltd.,” Vardhaman Nagar,
Narsing Lane, Malad (West), Mumbai 400064 is entitled to have Unilateral
Deemed Conveyance of deemed conveyance for the land admeasuring 3807.53
square meters Set back area aggregating to 4497.58 square meters, bearing
Survey No.47, Hissa No.1 (part), and CTS Nos. 484 and 484/1 to 17 of Village
Malad, Taluka Borivali, in Mumbai Suburban District along with society
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building standing thereon and accordingly certificate is issued on following
terms and conditions ….
26) Ordinarily, there can be no qualms about the exercise
undertaken by the Competent Authority in conducting the exercise of
proportionate land division based on BUA utilised in construction of
buildings of Petitioner and Respondent No.1-society. This is exactly what
is contemplated under the GR dated 22 June 2018 and has been
reiterated by this Court in several judgments. However, two difficulties
are posed in the present case for undertaking the exercise of land
division in proportion to the BUA utilised in construction of each
building. The building of Respondent No.1-society is constructed by
utilisation of massive TDR/incentive FSI. Secondly, Respondent No.1-
society has already registered deed of conveyance of land admeasuring
2040 sq.m. and therefore the Petitioner demands conveyance of the
balance land to itself without undertaking the exercise of proportionate
land division. There is yet another plea raised by the Petitioner that the
flat purchasers of the building of Respondent No.1-society were under
contractual obligation to become members of Petitioner-society and that
therefore it is otherwise impermissible to convey any portion of land to
Respondent No.1-society.
27) Thus, Petitioner’s main contention in the present petition is
that it must secure conveyance of the balance portion of land
admeasuring 7068.10 sq.m. ( total land admeasuring 9108.10 sq.m. - 2,040
sq.m. already conveyed to Respondent No.1) .
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ECREE ASSED IN IVIL UIT FILED BY ESPONDENT O
D P C S R N . 1
28) The sheet anchor of the Petitioner in demanding
conveyance of balance land admeasuring 7,068.10 sq.m. is the decree
passed in favour of Respondent No.1 in L.C. Suit No. 1748 of 2003, which
according to the Petitioner, is executed and marked as satisfied by virtue
of the registered Deed of Conveyance dated 31 December 2013 in respect
of land admeasuring 2040 sq.m. According to the Petitioner, since
Respondent No.1 has already secured conveyance of land admeasuring
2,040 sq.m. through execution of a decree of the Civil Court, the balance
land must now go to it.
29) No doubt, there is a decree passed in favour of Respondent
No.1 in L.C. Suit No. 1748 of 2003, which directed conveyance of land in
its favour. However, it is necessary to understand the context in which
the suit was filed and the decree was passed. As observed above, after
completion of construction of four buildings of the Petitioner-society,
there was balance inherent BUA of 980.27 sq.m. left in the larger
property. The larger property was sold by the original owners to Vasant
Khetani, who in turn sold the same to Kent. After purchasing the layout
land, Kent has constructed Kent Heights building of Respondent No.1-
society and has sold the flats therein by execution of agreements under
Section 4 of MOFA. The flat purchasers of Kent Heights building had
various grievances against the developer. It appears that Kent had left
the building incomplete which did not obtain occupancy certificate. Kent
had failed to provide water connection nor had provided the promised
amenities in the building. There were temporary structures of Kent at the
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suit site. Kent was apparently restraining the flat purchasers of Kent
Heights Building from using the two recreational grounds in the layout.
With these grievances, Respondent No.1-society filed L.C. Suit No. 1748
of 2003 in the City Civil Court. The gist of the prayers in the Suit is borne
out from para-1 of the judgment of the City Civil Court, which reads
thus:
1. By this suit plaintiffs have sought directions to defendant no.1 to complete
the building viz. ‘Kent heights’ and obtain occupation certificate and to provide
water connection and other amenities and to prevent obstruction from
defendant no.2 on the entire suit plot including R.G. Nos.1 & 2 and not to
further develop and construct on the suit property and to make accounts in
respect of the amounts collected by defendant no.1 from the members of the
plaintiff-society and further to give the records and documents in respect of
the suit property and its development thereon. The mandatory injunction has
been also sought against defendant no.2, directing defendant no.2- society
from removing the cement benches and platform erected on the suit property
and to remove the temporary structure put up on the suit site and preventing
defendant no.2 from interfering plaintiffs from using RG Nos.1&2 and putting
up any construction and preventing defendant no.2 from causing any
obstruction to the members of the plaintiff-society from enjoying the
amenities as set out in the prayer clause. Further injunction is sought against
municipal corporation – Defendant no.3 from granting any construction
permission of any type on the property without the consent of plaintiff no.1.
30) Thus, the Suit filed by Respondent No. 1 was mainly for
completion of various works in the building, for securing occupation
certificate for it and for enabling the residents of the building to enjoy
the common amenities in the layout. In the L.C. Suit No. 1748 of 2003,
the City Civil Court framed following issues:
Do the plaintiffs prove that plaintiff nos.2 to 4 have purchased suit flats
(1)
from the defendant no.1 by registered agreement for sale dated 17.12.1997
or their about?
(2) Do the plaintiffs prove that defendant no.1 is under obligation as per the
provisions of M.O.F.A. to complete the building Kent Heights and obtain
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occupation and completion certificates; to provide full water connection
and to make provisions for parking of vehicles in the property in favour of
all the flat purchasers of plaintiff no.1 society and to convey the property
in favour of the plaintiff no.1 society, as prayed in prayer clause (a) of the
plaint para no.31?
(3) Do the plaintiffs prove that as per agreement of sale of flats the whole plot
[sic] of land is to be conveyed to the plaintiff no.1 society?
Does plaintiff prove that defendant no.2 are obstructing and interfering in
(4)
the use, occupation and enjoyment of the plot and common amenities and
spaces by the plaintiffs and other members as averred in plaint para
no.113?
(5) Whether plaintiffs are entitled for perpetual injunction to restrain
defendant no.2 and his members for cause and obstructing and interfering
in the use, occupation and enjoyment of the plot and common amenities
and spaces by the plaintiffs and other members as alleged in plaint para
no.13?
(6) Whether plaintiffs are entitled for injunction to restrain defendant from
making further construction on the said property of any nature?
(7) Whether plaintiffs are entitled for account as prayed in prayer clause (a)
(vii)?
(8) Whether plaintiffs are entitled for prayer prayed in prayer clause (c)
regarding order sanction for prosecution?
(9) Whether plaintiff is entitled for any other relief and claim?
(10) What Order and Decree?
31) Thus, one of the issues framed in the Suit was with regard to
the conveyance of the land and the building by the Kent to Respondent
No. 1 society. It appears that Respondent No.1-society had prayed for
conveyance of the entire larger property in its favour. The relevant
discussion by the City Civil Court on Issue No.3 relating to conveyance is
as under:
30. The agreement executed between defendant no.1 and defendant no.2
authorises the plaintiff-society to form independent ad-hoc committee to look
after the day to day affairs. It is seen that defendant no.1 has not taken steps to
form the society and therefore, plaintiff had to form their society and complete
the remaining structures. Now there are two independent societies. Defendant
no.2 is already existing society and the plaintiff-society is a new society. The
plaintiff’s rights created by the subsequent agreement are subject to the
limitations imposed by the earlier agreement taken place between defendant
no.1 and defendant no.2, as defendant no.2 cannot transfer any better title
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than he had in the suit property. Therefore, I am of the view that plaintiffs are
entitled for conveyance of the land purchased for plaintiff-society along with
the amenities as per rules. Thus, issue no.3 is answered partly in the
affirmative.
32) The operative portion of the judgment and order dated 31
July 2008 of the City Civil Court reads thus:
Suit No.1748/03 is partly decreed with costs as under:-
Defendant No.1 is directed to complete the building and obtain Occupation
Certificate and Completion Certificate and to make the necessary provisions
and take steps to provide water connection and to convey to the plaintiff-
society his right, title and interest in the land and building and execute
all relevant documents therefor in accordance with the agreement
executed by him in favour of the flat purchasers within two months from
the date of the order, failing which the plaintiffs will be entitled to get
the title conveyed through court subject to the rules and regulations of
the M.M.C. Act.
Defendant No.1 is restrained from developing the suit premises any more.
Commissioner be appointed for making of accounts in order to ascertain the
amount of money due to plaintiff from defendant no.1
Defendant no.1 is restrained from disposing and developing of the suit
property.
Defendant no.1 shall pay the costs of the suit to plaintiff.
Preliminary decree be drawn accordingly.
(emphasis and underlining added)
33) Thus, the City Civil Court directed conveyance of Kent’s
right, title and interest in the land and the building in favour of the
Respondent No. 1 Society and to execute the relevant documents in
accordance with the agreement executed by Kent in favour of the flat
purchasers. The decree is silent about the exact portion of land to be
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conveyed in favour of Respondent No.1-society and it vaguely directed
conveyance of ‘ his right, title and interest in the land and the building ’. In
the event of failure to convey the land and the building, the Court
directed that Respondent No. 1 society would be entitled to get the title
conveyed through Court “ subject to the rules and regulations of the M.M.C.
Act ”. What exactly is the purport of this condition is difficult to
comprehend. Be that as it may. The City Civil Court essentially
adjudicated the disputes between Respondent No.1-society and Kent
while decreeing the suit. It upheld the right of Respondent No.1-society
of conveyance of land from the promoter, but did not touch the issue of
distribution of land between Petitioner and Respondent No.1-society.
ONVEYANCE EED POST THE ECREE
C D D
34) Respondent No.1-society filed Application for execution of
the decree dated 31 July 2008. In the execution application, the
Additional Registrar of City Civil Court issued notice to the judgment
debtors on 10 December 2010, to which a draft of conveyance was
appended. The said draft envisaged conveyance of land admeasuring
“3040 sq.mts” in favour of Respondent No.1-society. It is not known as
to what ultimately happened in the execution proceedings. However, on
31 December 2013, Respondent No.1 and Kent executed registered Deed
of Conveyance under which land admeasuring only “2040 sq.m.” has
been conveyed in favour of Respondent No.1-society. Thus, there is
reduction of 1000 sq.m. land in the Deed of Conveyance as compared to
the draft of conveyance appended to the notice issued in the execution
proceedings. In the Deed of Conveyance, land admeasuring 2040 sq.m. is
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described as ' the land below and appurtenant to the said building ’. This is
clear from the following recital in the Deed:
The land below and appurtenant to the said Building admeasures 2040 sq.mts.
and bearing final Plot bearing C.T.S. No.484 (part), Hissa No.2 (part) from and
out of the sold larger land and is shown yellow wash on the plan hereto
annexed as Annexure A; and is hereinafter referred to as “the said area”.
35) Further recital to the Deed of Conveyance records that
Respondent No.1 had requested Kent to execute the deed in terms of the
judgment and decree dated 31 July 2008. This is clear from the following
covenant:
st
The purchasers in terms of the said Judgment and Decree dated 31 July 2008
[sic] have requested the Developers/Promoters to execute these presents so as
to effectively convey the said property more particularly written hereunder in
the Second Schedule together with the said Building in favour of the
Purchasers, and the Developers/Promoters have agreed to do so by executing
this Indenture. For the purpose of the present Conveyance no additional or
separate consideration is being paid to the Developers/Promoters save and
except the consideration already paid to the Developers/Promoters under the
various agreements with the flatholders in the Purchasers’ society.
36) As per the Deed of Conveyance dated 31 December 2013, the
land in the second schedule has been conveyed by Kent in favour of
Respondent No.1. The second schedule to the Deed reads thus:
THE SECOND SCHEDULE ABOVE REFERRED TO:
ALL THOSE pieces or parcels of land admeasuring about 2040 sq. mts. bearing
CTS No.484 (part), Survey No.2 (part), Village Malad, Taluka Borivli and Sub
District Bandra, District Mumbai in Greater Mumbai situated, lying and being
at Narsing Lane, Malad (West), together with the structure standing thereon
and bounded as follows:
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37) There is nothing on record to indicate that copy of
Conveyance Deed was placed before the Executing Court or that it
marked the decree as satisfied after taking note of Conveyance Deed.
W HETHER C ONVEYANCE D EED IS E XECUTED T OWARDS M ARKING OF
S ATISFACTION OF THE D ECREE
38) As observed above, that the Deed of Conveyance is not
executed as per the draft appended to the notice issued by the Executing
Court. This lends credence to the submission of Mr. Tamboly that the
execution of Deed of Conveyance is a voluntary act between Respondent
No.1 and Kent. There is nothing on record to indicate that the Deed of
Conveyance was produced before the Executing Court for the purpose of
marking the decree as satisfied. This indicates that the Deed of
Conveyance is a private arrangement between Respondent No.1 and Kent
during pendency of the execution proceedings. In any case, it cannot be
held that the Deed of Conveyance is executed after adjudication by the
Executing Court of quantum of land conveyable to Respondent No.1 in
the layout.
39) In view of the above discussion, it is difficult to accept the
contention raised on behalf of the Petitioner that the Conveyance Deed
dated 31 December 2013 is executed towards satisfaction of the decree or
that Respondent No.1 is estopped from claiming land area in excess of
what is conveyed under the said Deed. These findings are recorded
particularly considering the unique circumstances of the present case
where the area of land in the draft deed does not match the one reflected
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in the Conveyance Deed. As per the exercise of proportionate land
division, ( even by taking into consideration the limit imposed under the
Agreement dated 17 October 1995 ) Respondent No.1 would be entitled to
higher area of land. This Court therefore is not inclined to adopt hyper-
technical approach of binding Respondent No.1 to the voluntary
conveyance executed after passing of decree in its favour for the purpose
of denying it its lawful right.
40) It is also seen that if Respondent No.1 is held entitled to
conveyance of land of only 2040 sq.mts, which is the plinth and
appurtenant land, it will not secure any share in the Recreational Ground
and Petitioner alone would be entitled to own and use the RG. The RG is
a common amenity for being used by both the societies and Petitioner-
society cannot alone claim rights in respect thereof. Therefore, on this
count also, contention of the Petitioner that Respondent No.1 cannot
seek conveyance of land over and above area of 2040 sq.m. on account of
passing of decree in its favour, cannot be accepted.
41) It is accordingly held that the Conveyance Deed is not
executed in pursuance of execution proceedings or towards making
satisfaction of the decree.
HETHER XECUTION F EGISTERED EED F ONVEYANCE N AVOUR
W E O R D O C I F
O F R ESPONDENT NO . 1-S OCIETY E NTITLES P ETITIONER T O C LAIM
C ONVEYANCE O F L AND I N E XCESS O F I TS T RUE E NTITLEMENT ?
42) According to Mr. Khandeparkar, even though the decree of
the City Civil Court may have been silent about the exact area of the land
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to be conveyed, the issue can still be resolved in the execution
proceedings. According to him, the Executing Court can ascertain the
area of land to be conveyed under the decree. He has relied on judgment
of the Apex Court in Pratibha Singh (supra) in which the Apex Court has
held that any defect in not properly describing the property as per the
requirements of Order VII Rule 3 and Order XX Rule 3 of the Code is
capable of being cured and that the same can be cured in execution
proceedings. The Apex Court has held that the exact description of
decretal property may be ascertained by the Executing Court as a
question relating to execution, discharge or satisfaction of the decree
within the meaning of Section 47 of the Code. It is held that mere
accidental slip or omission by a Court in not describing the decretal
property cannot defeat such decree. It is held by the Hon’ble Apex Court
in Pratibha Singh in paras-15, 16 and 17 of the judgment as under:
15. Order 7 Rule 3 CPC requires where the subject-matter of the suit is
immovable property, the plaint shall contain a description of the property
sufficient to identify it. Such description enables the court to draw a proper
decree as required by Order 20 Rule 3 CPC. In case such property can be
identified by boundaries or numbers in a record for settlement of survey, the
plaint shall specify such boundaries or numbers. Having perused the revenue
survey map of the entire area of RS Plot No. 595 and having seen the maps
annexed with the registered sale deeds of the defendant judgment-debtors we
are clearly of the opinion that Sub-plots Nos. 595/I and 595/II were not capable
of being identified merely by boundaries nor by numbers as sub-plot numbers
do not appear in records of settlement or survey. The plaintiffs ought to have
filed the map of the suit property annexed with the plaint. If the plaintiffs
committed an error the defendants should have objected to it promptly. The
default or carelessness of the parties does not absolve the trial court of its
obligation which should have, while scrutinizing the plaint, pointed out the
omission on the part of the plaintiffs and should have insisted on a map of the
immovable property forming the subject-matter of the suit being filed. This is
the first error.
16. The second error was committed during the execution proceedings. Under
Order 21 Rule 32 CPC a decree for specific performance of a contract, on failure
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to obey, may be enforced by the judgment-debtor being detained in civil prison.
Order 21 Rule 34 provides the procedure for execution of documents pursuant
to a decree. Where a decree is for the execution of a document the decree-
holder may prepare a draft of the document in accordance with the terms of
the decree and deliver the same to the court. Thereupon the court shall cause
the draft to be served on the judgment-debtor together with a notice requiring
his objections, if any, to be made out within time as the court fixes in this
behalf. Where the judgment-debtor objects to the draft, his objections shall be
stated in writing and then determined. The draft shall be approved or altered
consistently with the finding arrived at by the court. In the present case the
plaintiff decree-holders pointed out that the defendant judgment-debtors were
aware of the contents of the draft sale deed. The fact remains that the draft
sale deed accompanied by a notice requiring objections to be made by a
judgment-debtor as provided by sub-rule (2) of Rule 34 of Order 21 CPC was
not caused to be served by the court. The record also reveals the judgment-
debtors repeatedly insisting, maybe dogmatically, on draft sale deed being
delivered to them enabling objections being filed. There is no determination by
the executing court that the immovable property as delineated and
demonstrated in the map accompanying the draft sale deed was the property
forming the subject-matter of the agreement to sell and the decree. Inasmuch
as the possession is yet to be taken by the plaintiff decree-holders, this aspect
can still be taken care of and that we shall do by making an appropriate
direction in the operative part of this order.
17. When the suit as to immovable property has been decreed and the property
is not definitely identified, the defect in the court record caused by overlooking
of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of
being cured. After all a successful plaintiff should not be deprived of the fruits
of decree. Resort can be had to Section 152 or Section 47 CPC depending on the
facts and circumstances of each case — which of the two provisions would be
more appropriate, just and convenient to invoke. Being an inadvertent error,
not affecting the merits of the case, it may be corrected under Section 152 CPC
by the court which passed the decree by supplying the omission. Alternatively,
the exact description of decretal property may be ascertained by the executing
court as a question relating to execution, discharge or satisfaction of decree
within the meaning of Section 47 CPC. A decree of a competent court should
not, as far as practicable, be allowed to be defeated on account of an accidental
slip or omission. In the facts and circumstances of the present case, we think it
would be more appropriate to invoke Section 47 CPC.
43) In my view however, ratio of the judgment in Pratibha
Singh would have no application to the facts of the present case. I find it
bit difficult to accept the proposition that when decree of a Civil Court
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does not specify the exact area of land to be conveyed in favour of a
housing society, the Executing Court can resolve the dispute relating to
area entitlement. In cases involving layout development, the land
division and area entitlement between different societies are often a hot-
bed of controversy. When conveyance of share of land in a layout
development is sought, it is incumbent that the Civil Court determines
the exact land area which would fall to the share of the plaintiff-society
and direct conveyance of specified land area in the decree. The Civil
Court cannot leave the question of land area to speculation and make a
vague decree for conveyance of promoter’s right, title and interest in the
land and the building. When the case involves construction of only one
building on a plot of land, issuance of direction by the Civil Court for
conveyance of promoter’s right, title and interest in the land and the
building would suffice and would result in an executable decree. In such
case any ambiguity about description of land can be resolved by the
executing Court as held in Pratibha Singh. However, when it comes to
conveyance of a land in a layout where there are multiple
buildings/societies, it is incumbent that the Civil Court determines with
sufficient clarity the exact land entitlement of the plaintiff-society or
else, a vague decree directing conveyance of promoter’s right, title and
interest in the land and the building would create more problems than
solving one.
44) The Executing Court cannot go behind the decree. If the
Trial Court fatters in not determining the exact land entitlement of a
society in a layout development, the Executing Court cannot undertake
that exercise. What Trial Court has avoided to do cannot be done by an
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Executing Court. There is a conceptual difference between omission to
describe the suit property in accordance with the requirement of Order
VII Rule 3 of the Code leading to difficulty in identifying the property at
the time of execution and Trial Court’s failure to perform essential
function of determining the land entitlement for conveyance in a layout
development. What happens in the former case is omission of the
plaintiff leading to lack of clarity about identification of the property,
whereas what happens in the latter case is Trial Court’s failure to
adjudicate contentious issue of land sharing in the layout development.
Therefore, the defect in the decree in the latter case cannot be cured by
the Executing Court. The Executing Court cannot undertake the exercise
of determining the contentious issue of share of land in a layout
development.
45) In the present case, though the Trial Court has adjudicated
right of Respondent No.1 to seek conveyance from Kent, it has failed to
adjudicate the exact area of land which Respondent No.1 is entitled to
secure by considering the competing claims between the two societies.
The issue of conveyance of land in a layout development involves twin
inquiries. The first adjudication is about the promoter’s obligation to
convey the land and the building under Section 11 of MOFA. The second
inquiry is about the proportionate land division in the layout by
adjudicating the share of each society in the land. Thus, the former
inquiry is between the Plaintiff-society and the promoter, whereas the
latter one is between the two societies. Both inquiries are necessary. In a
given case, the promoter may oppose conveyance on the ground that the
time for conveyance is yet to occur or construction of the building is still
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incomplete or that the society is not entitled to own the land, but can get
only a lease thereof, etc. Therefore, the Court first needs to adjudicate
the issue as to whether the promoter can be directed to convey the land
or not. In a case involving single building scenario conveyance suit can
be restricted only to the first inquiry between the Plaintiff-society and
the promoter. On the other hand, a plaintiff-society needs to seek both
the adjudications in layout scenario viz. promoter obligation to convey
the land and Plaintiff-society’s share in the layout land. In the present
case, the Respondent No. 1-society appears to have restricted the
adjudication only to the former inquiry i.e. about promoter’s obligation
to convey the land. It did not seek adjudication of issue of proportionate
land division in the suit.
46) Though the Petitioner was Defendant No. 2 in L.C. Suit No.
1748/2003, no issue was framed with regard to the share of the layout
land between the two societies. It appears that Defendant No.2
( Petitioner) filed written statement questioning the validity of
construction of building of Respondent No.1-society and contended that
the whole property must be conveyed to the Petitioner and that
Respondent No.2 was not entitled to conveyance of the land. In the light
of rival positions taken in the pleadings, the Trial Court framed Issue
No.3 about Plaintiff's entitlement to conveyance of whole of the land.
The issue has been answered partly in the affirmative by recording
findings in para-30 of the judgment as culled out above. Thus, there
were neither any pleadings nor evidence before the Trial Court for
deciding the competing claims between the two societies with regard to
sharing of land entitlement. As observed above, ordinarily, once a prayer
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for conveyance of the land is included in the plaint and if the case
involves layout development, the Trial Court is required to ascertain the
exact area of land which is required to be conveyed to the plaintiff-
society. In the present case, since the main thrust of the Plaintiff was on
completion of construction of the building and since the issue was as to
whether either of the societies can secure conveyance of the whole land,
there was no occasion for the Trial Court to decide the issue of
proportionate land division. Be that as it may. The City Civil Court did
not ascertain the exact area of land to be conveyed in favour of the
Plaintiff-society. As observed above, the Executing Court cannot
undertake the exercise of conducting evidentiary trial with regard to the
area entitlement in the layout land. In such a situation, expecting the
Executing Court to ascertain share of land entitlement would be akin to
it determining shares of parties in a partition suit. In a given case, if the
Trial Court merely holds that plaintiff is entitled to a share in the land
but does not specify the quantum of such share, the Executing Court
cannot go beyond the decree and decide the exact share of the plaintiff.
47) Mr. Khandeparkar has relied upon provisions of Section 47
of the Code in support of his contention that only the Executing Court
can decide the dispute relating to land-sharing on account of use of
words ‘ not by a separate suit ’. Section 47(1) of the Code reads thus:
47. Questions to be determined by the Court executing decree.-
(1) All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit.
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48) Thus, only the issues relating to execution, discharge or
satisfaction of the decree can be decided by the Executing Court. Any
issue which travels beyond the scope of execution, discharge or
satisfaction of the decree would fall squarely outside the jurisdiction of
the Executing Court. In the present case, it is difficult to hold that
ascertainment of shares in the land is a question relating to execution,
discharge or satisfaction of the decree. The question of determination of
shares in the land requires adjudication and the same cannot be decided
by the Executing Court in exercise of jurisdiction under Section 47 of the
Code.
49) Mr. Khandeparkar has also relied on provision of Section 152
of the Code in support of the contention that if the quantum of land is
not ascertained in the decree, the Plaintiff (Respondent No. 1) can
approach the Court which made the decree to get the necessary
clarification. Section 152 of the Code reads thus:
152. Amendment of judgments, decrees or orders .-
Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising
therein from any accidental slip or omission may at any time be corrected by the Court
either of its own motion or on the application of any of the parties.
Thus only clerical or arithmetical mistakes in the judgments, decrees or
orders arising therein from any accidental slip or omission can be
corrected by the Court under Section 152 of the Code. However as
observed above, ascertainment of quantum of area to be shared by the
two societies in the layout land requires adjudication. The jurisdiction of
civil court under Section 152 of the Code is clarificatory or ministerial
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and not adjudicatory. Any issue that requires adjudication cannot be
dealt with in exercise of jurisdiction under Section 152 of the Code.
50) In any case, it is not necessary for this Court to delve deeper
into the aspect of availability of remedies for Respondent No. 1 to have
conveyance of its share of land in the layout. It is Petitioner who
approached the Competent Authority and have invited adjudication of
dispute about conveyance of its share in the layout land. The present
Petition questions the correctness of adjudication done by the
Competent Authority. Therefore in this Petition, it is not even necessary
to decide what remedies Respondent No. 1 must adopt for securing
correct entitlement of land in pursuance of the decree passed in its
favour. In the present case, Petitioner-society wants to take advantage of
the conundrum created for Respondent No. 1 in securing its due land
entitlement through the decree passed in its favour. Petitioners
contention relating to impermissibility for Respondent No. 1 to go
beyond the decree allegedly executed and marked as satisfied are aimed
at ensuring that the Petitioner-society receives conveyance of land in
excess of its entitlement. This aspect is dealt with in greater detail in the
latter part of the judgment.
E STOPPEL AND R ES - JUDICATA
51) Mr. Khandeparkar has strenuously pressed into service
objections of estoppel and res-judicata to oppose the liberty granted to
Respondent No.1-society to apply for conveyance of balance portion of
the land. According to him, once the Deed of Conveyance is registered
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towards execution of the decree, the cause of action has come to an end
and initiation of any fresh proceedings would be barred by the principles
of res judicata and estoppel. In support, Mr. Khandeparkar has relied on
the judgment of the Apex Court in State of UP Versus. Nawab Hussain
(supra) in which the Apex Court has held in para-3 of the judgment as
under:
3. The principle of estoppel  per rem judicatam  is a rule of evidence. As has been
stated in  Marginson  v.  Blackburn Borough Council  [(1939) 2 KB 426 at p. 437] , it
may be said to be “the broader rule of evidence which prohibits the reassertion
of a cause of action”. This doctrine is based on two theories: ( i ) the finality and
conclusiveness of judicial decisions for the final termination of disputes in the
general interest of the community as a matter of public policy, and ( ii ) the
interest of the individual that he should be protected from multiplication of
litigation. It therefore serves not only a public but also a private purpose by
obstructing the reopening of matters which have once been adjudicated upon.
It is thus not permissible to obtain a second judgment for the same civil relief
on the same cause of action, for otherwise the spirit of contentiousness may
give rise to conflicting judgments of equal authority, lead to multiplicity of
actions and bring the administration of justice into disrepute. It is the cause of
action which gives rise to an action, and that is why it is necessary for the
courts to recognise that a cause of action which results in a judgment must
lose its identity and vitality and merge in the judgment when pronounced. It
cannot therefore survive the judgment, or give rise to another cause of action
on the same facts. This is what is known as the general principle of res
judicata.
52) Relying on judgment of the Apex Court in Nawab Hussain ,
Mr. Khandeparkar has contended that it is not permissible to obtain a
second judgment for the same relief on the same cause of action so as to
avoid conflicting judgments, multiplicity of actions and to prevent
administration of justice from falling into disrepute. In my view however,
since there was no adjudication of the issue of exact area entitlement of
Respondent No.1 in the decree passed by the Civil Court, the principle of
estoppel or res judicata would not have any application to the facts and
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circumstances of the present case. The case does not involve a situation
where the Civil Court has adjudicated area entitlement of Respondent
No.1-society and has determined the same as 2040 sq.m. On the other
hand, the Civil Court merely directed execution of conveyance without
specifying the exact area to be conveyed. Respondent No.1-society
submitted a draft for conveyance of land admeasuring 3040 sq.m. and it
is difficult to fathom as to on what basis, conveyance of land
admeasuring 3040 sq.m. was sought. It is incomprehensible as to on
what basis, area of 3040 sq.m. was arrived at in the draft of conveyance
appended to execution notice. Ultimately, Conveyance Deed is not
executed in respect of area of 3040 sq.m. and the same is executed in
respect of lesser area of 2040 sq.m. As observed above, there is nothing
on record to indicate that the Conveyance Deed is executed towards
satisfaction of the decree. Since the decree did not specify any area to be
conveyed, it is difficult to hold that execution of Conveyance Deed was
towards marking satisfaction of the decree. In my view therefore, the
principle of res judicata would have no application to the facts and
circumstances of the present case.
53) Mr. Khandeparkar has also relied on judgment of the Apex
Court in Bhanu Kumar Jain (supra), in which it is held in paras-29 to 32
as under:
29. There is a distinction between “issue estoppel” and “res judicata”.
(See  Thoday  v.  Thoday  [(1964) 1 All ER 341 : (1964) 2 WLR 371 : 1964 P 181
(CA)] .)
30. Res judicata debars a court from exercising its jurisdiction to determine the
lis if it has attained finality between the parties whereas the doctrine issue
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estoppel is invoked against the party. If such an issue is decided against him,
he would be estopped from raising the same in the latter proceeding. The
doctrine of res judicata creates a different kind of estoppel viz. estoppel by
accord.
31. In a case of this nature, however, the doctrine of “issue estoppel” as also
“cause of action estoppel” may arise. In  Thoday  [(1964) 1 All ER 341 : (1964) 2
WLR 371 : 1964 P 181 (CA)] Lord Diplock held: (All ER p. 352 B-D)
“… ‘cause of action estoppel’, is that which prevents a party to an action
from asserting or denying, as against the other party, the existence of a
particular cause of action, the non-existence or existence of which has been
determined by a court of competent jurisdiction in previous litigation between
the same parties. If the cause of action was determined to exist i.e. judgment
was given on it, it is said to be merged in the judgment.… If it was determined
not to exist, the unsuccessful plaintiff can no longer assert that it does; he is
estopped per rem judicatam.” [ Ed. : The rest of the extract from Thoday [(1964)
1 All ER 341 : (1964) 2 WLR 371 : 1964 P 181 (CA)] may usefully be referred to
(All ER p. 352, B-F)“Estoppel per rem judicatam is a generic term which in
modern law includes two species. The first species, ‘cause of action estoppel’, is
that which prevents a party to an action from asserting or denying, as against
the other party, the existence of a particular cause of action, the non-existence
or existence of which has been determined by a court of competent jurisdiction
in previous litigation between the same parties. If the cause of action was
determined to exist, i.e., judgment was given on it, it is said to be merged in
the judgment, or for those who prefer Latin, transit in rem judicatam. If it was
determined not to exist, the unsuccessful plaintiff can no longer assert that it
does; he is estopped per rem judicatam. This is simply an application of the
rule of public policy expressed in the Latin maxim, ‘nemo debet bis vexari pro
una at eadem causa’. In this application of the maxim, causa bears its literal
Latin meaning. The second species, ‘issue estoppel’, is an extension of the
same rule of public policy. There are many causes of action which can only be
established by proving that two or more different conditions are fulfilled. Such
causes of action involve as many separate issues between the parties as there
are conditions to be fulfilled by the plaintiff in order to establish his cause of
action; and there may be cases where the fulfilment of an identical condition is
a requirement common to two or more different causes of action. If in
litigation on one such cause of action any of such separate issues whether a
particular condition has been fulfilled is determined by a court of competent
jurisdiction, either on evidence or on admission by a party to the litigation,
neither party can, in subsequent litigation between them on any cause of
action which depends on the fulfilment of the identical condition, assert that
the condition was fulfilled if the court has in the first litigation determined
that it was not, or deny that it was fulfilled if the court in the first litigation
determined that it was.”]
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32. The said dicta was followed in  Barber  v.  Staffordshire County Council  [(1996)
2 All ER 748 (CA)] . A cause of action estoppel arises where in two different
proceedings identical issues are raised, in which event, the latter proceedings
between the same parties shall be dealt with similarly as was done in the
previous proceedings. In such an event the bar is absolute in relation to all
points decided save and except allegation of fraud and collusion. [See  C. (A
Minor)  v.  Hackney London Borough Council  [(1996) 1 All ER 973 : (1996) 1 WLR
789 (CA)] .]
54) Reliance is also placed on judgment of the Apex Court in
Hope Plantations (supra) in which it is held in para-26 of the judgment
as under:
26. It is settled law that the principles of estoppel and res judicata are based on
public policy and justice. Doctrine of res judicata is often treated as a branch of
the law of estoppel though these two doctrines differ in some essential
particulars. Rule of res judicata prevents the parties to a judicial determination
from litigating the same question over again even though the determination
may even be demonstratedly wrong. When the proceedings have attained
finality, parties are bound by the judgment and are estopped from questioning
it. They cannot litigate again on the same cause of action nor can they litigate
any issue which was necessary for decision in the earlier litigation. These two
aspects are “cause of action estoppel” and “issue estoppel”. These two terms
are of common law origin. Again, once an issue has been finally determined,
parties cannot subsequently in the same suit advance arguments or adduce
further evidence directed to showing that the issue was wrongly determined.
Their only remedy is to approach the higher forum if available. The
determination of the issue between the parties gives rise to, as noted above, an
issue estoppel. It operates in any subsequent proceedings in the same suit in
which the issue had been determined. It also operates in subsequent suits
between the same parties in which the same issue arises. Section 11 of the
Code of Civil Procedure contains provisions of res judicata but these are not
exhaustive of the general doctrine of res judicata. Legal principles of estoppel
and res judicata are equally applicable in proceedings before administrative
authorities as they are based on public policy and justice.
55) No doubt, the principles of res judicata do apply to
proceedings before the Competent Authority under Section 11(3) of
MOFA as held by the Apex Court in Faime Makers Pvt. Ltd. vs. District
15
Deputy Registrar, Co-operative Societies (3), Mumbai as under:
15
(2025) 5 SCC 772
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23. It has been settled by this Court that the principle of res judicata applies to
and binds quasi-judicial authorities. This Court in  Ujjam Bai  v.  State of
U.P.  [ Ujjam Bai  v.  State of U.P. , 1962 SCC OnLine SC 8] has taken the view that
principles of res judicata equally apply to quasi-judicial bodies. Whenever a
judicial or quasi-judicial tribunal gives a finding on law or fact, its findings
cannot be impeached collaterally or in a second round and are binding until
reversed in appeal or revision or by way of writ proceedings.
24. The characteristic attribute of a judicial act or decision is that it binds,
whether right or wrong. Thus, any error, either of fact or law, committed by
such bodies cannot be controverted otherwise by way of an appeal or revision
or a writ unless the erroneous determination relates to the jurisdictional
matter of that body.
25. This position has been further reinforced in  Abdul Kuddus  v.  Union of
India  [ Abdul Kuddus  v.  Union of India , (2019) 6 SCC 604] which relies
upon  Ujjam Bai  [ Ujjam Bai  v.  State of U.P. , 1962 SCC OnLine SC 8] . In  Abdul
Kuddus  [ Abdul Kuddus  v.  Union of India , (2019) 6 SCC 604] , this Court held that
the opinion by the Foreigners Tribunal is a quasi-judicial order. Therefore, it
would be incorrect to hold that the opinion of the Tribunal and/or the
consequential order passed by the registering authority would not operate as
res judicata. Further, it was established that any quasi-judicial authority would
not ordinarily have the power to unilaterally take a contrary view taken by a
coordinate or predecessor authority at an early point in time.
26. From the foregoing discussion, it is evident that once a competent
authority (quasi-judicial in nature) settles an issue, that determination attains
finality unless it is set aside in accordance with law.
56) Thus, the principle of res judicata applies only when
Competent Authority seeks to adjudicate fresh application for deemed
conveyance after decision of earlier application, order in which has
attained finality. Thus for successive applications before the Competent
Authority, the principle of res judicata does apply. The principle of res
judicata would also apply where the Civil Court makes adjudication of
land area in a suit and Competent Authority seeks to re-adjudicate the
same issue in Application under Section 11(3) of MOFA. However, this
does not apply to a converse situation where Competent Authority
makes adjudication relating to land entitlement and the affected party
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seeks to re-adjudicate the same issue before Civil Court. It is well-settled
principle that adjudication made by the Competent Authority in exercise
of its summary jurisdiction under Section 11(3) of MOFA is not final
determinative of rights and entitlements of parties in respect of the
conveyed land. It is always open for an aggrieved party to file a civil suit
and seek declaration to the contrary. This is because Civil Court
undertakes an intrinsic evidentiary enquiry as compared to summary
enquiry made by the Competent Authority. This law is well settled by
the judgment of the Division Bench of this Court in Mazda Construction
16
Co. vs Sultanabad Darshan Co-operative Housing Society Ltd. and of
the Apex Court in Arunkumar H. Shah (HUF) vs. Avon Arcade Premises
17
Co-operative Housing Society Ltd. Thus, principle of res judicata does
not apply when Competent Authority adjudicates the issue of land
entitlement and it is open for the aggrieved party to seek declaration to
the contrary by filing a civil suit.
57) In the present case, the principles of res judicata and
estopple are sought to be applied because a decree is already made by
the Civil Court in respect of a prayer for conveyance made by Respondent
No.1-society.
58) So far as the principle of estoppel is concerned, the same is
sought to be applied essentially on account of conduct of the Respondent
No.1 in executing and registering the Deed of Conveyance dated 31
December 2013. However, if the promoter contractually conveys area of
16
2012 SCC OnLine Bom 1226
17
2025 SCC OnLine SC 825
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land lesser than the lawful entitlement of the society and if the society
executes and registers a Deed of Conveyance in respect of such lesser
land, the same does not prevent the society from applying for deemed
conveyance of the balance land under Section 11(3) of MOFA. Section 11
of MOFA creates an absolute right in favour of organization of flat
purchasers to secure conveyance of land and the building. This right
cannot be circumscribed by any private contractual arrangement
between the parties. Section 16 of MOFA provides that the provisions of
the Act take effect notwithstanding anything to the contrary contained
in the contract. Section 16 of MOFA provides thus:
16. Act to be in addition to Transfer of Property Act and to over-ride
contract to the contrary.—
The provisions of this Act, except where otherwise provided, shall be in
addition 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.
59) Therefore, mere contractual arrangement made between the
promoter and the society does not defeat the right of the society to
secure conveyance of its entitled portion of land. If this principle is not
recognized, the same would again create a handle for developers who
would commit the mischief of conveying lesser land or rights lesser than
ownership in the land in favour of a society and then raise the objection
of estoppel before the Competent Authority. To illustrate, if a building is
constructed by utilizing the entire FSI potential from the land
admeasuring 1,000 sq.m., the developer may deliberately execute
conveyance of land admeasuring only 800 sq.m. to the society with a
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view to exploit further additional development potential flowing through
change in the FSI regime by retaining ownership in respect of the land
admeasuring 200 sq.m. Merely because the society may have signed and
registered Deed of Conveyance for land admeasuring 800 sq.m., such
conduct of the society would not estop it from claiming conveyance of
200 sq.m. of land by filing an application under Section 11(3) of MOFA
before the Competent Authority. To discuss another illustration, a
promoter, who owns the land, may grant only leasehold rights in the land
in favour of the society and then raise an objection of estoppel when
society files application under Section 11(3) of MOFA for conveyance of
ownership rights. Mere conduct of the society in accepting leasehold
rights in the land would not destroy its legal right under Section 11 to
claim ownership in respect of the land by filing application for deemed
conveyance before the Competent Authority.
60) The principle of estoppel is wholly inapplicable to MOFA
scheme when organization of flat purchasers exhibit a conduct in
accepting lesser area/right than those lawfully due to it under the Act. No
amount of conduct of organization of flat purchasers can ever defeat the
statutory right created in its favour to have conveyed promoters’ right,
title and interest in respect of the land and the building. This would
apply where such organization accepts either lesser area of land or lesser
right like lease through a private contract / instrument / deed. Execution
of such contract does not defeat statutory right of organization of flat
purchasers who can always approach the Competent Authority for what
is deliberately withheld by the promoter contrary to Section 11 of MOFA .
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61) It is otherwise well-settled position that mere execution or
registration of a conveyance deed does not operate as an estoppel for
organisation of flat purchasers seeking to exercise the remedy to secure
conveyance of rights and area lawfully due under MOFA. In Prestige
Garden CHSL (supra), Petitioner-society had executed and registered
deed of conveyance of land admeasuring 3461.43 sq.m. in pursuance of
order passed by the Competent Authority and thereafter challenged the
order of the Competent Authority for securing conveyance of higher area
of land. An objection of estoppel was raised by the promoter contending
that the society was estopped from challenging the order on which it had
acted upon. Rejecting the contention, this Court held in paras-38 and 41
of the judgment as under:
38. The Unilateral Deed of Conveyance was registered conveying land
admeasuring 3461.43 square meters. Thereafter subsequent to the objection
raised by Respondent No. 10, the communication dated 10th June, 2021 was
addressed to the Petitioner-Society directing it to register the Deed of
Rectification which was done on 4th August, 2021. As discussed above, the
statutory provisions entitle the Petitioner to the Promoter's right, title and
interest in the land and building and by the impugned order the Competent
Authority has conveyed only the constructed structure which was in clear
violation of the mandate of MOFA. The submission on principles of estoppel
and approbation and reprobation is premised on the reasoning that the
Petitioner-Society has obtained a benefit under the impugned order and having
obtained benefit and acted upon the order, cannot now turn back and assail the
said order. The submission overlooks the position that under the statutory
provisions, the Petitioner-Society was entitled to the conveyance of the land as
well as the building. It is settled position in law that there cannot be any
estoppel against statute. In view of the provisions of MOFA it cannot be said
that the Petitioner Society has received any benefit under the impugned order
which but for the impugned order the Petitioner was not entitled to and thus
having accepted the benefit now cannot turn back and challenge the order. The
Petitioner in the present case has been denied what is rightfully due to them
under MOFA, i.e. conveyance of the land and the building. It cannot be said
that the Petitioner-Society with full knowledge of its legal rights had accepted
the impugned order. In my view, interest of justice demands that the Petition is
not thrown out on procedural law of principle of estoppel or acquiescence.
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Weighed against the substantial justice, in my opinion, the submission on the
aspect of estoppel and approbation and reprobation is liable to be rejected.
41. The next decision relied upon by Mr. Cama is decision of the Apex Court in
case of  State of Punjab  v.  Dhanjit Singh Sandhu  (supra). In that case, the
respondent allottee had accepted the terms and conditions of allotment letter
and possession was taken but they did not raise any construction as required.
Upon demand being raised for payment of non construction fee to avoid
resumption, the same was paid and after availing benefit of extention sought
refund of extension fee. The Apex Court held that once an order has been
passed, complied with and accepted and derived benefit out of it, the same
cannot be challenged on any ground. There is no quarrel with the proposition
of law laid down by the Apex Court. What needs to be noted is while applying
procedural law like principle of estoppel or acquiescence, the Court would be
concerned with conduct of party for determination as to whether he can be
permitted to take different stand in a subsequent proceeding unless there
exists statutory interdict. (See  Jai Narain Parasrampuria  v.  Pushpa Devi Saraf
[(2006) 7 SCC 756]. In the instant case, it cannot be said that by accepting the
impugned order, the Petitioner-Society has acquired a benefit which it could
not have otherwise acquired. The statutory provisions of MOFA entitle the
Petitioner to obtain conveyance of the land and building and conveyance of
constructed structure is to the detriment of the Petitioner.
62) Thus, there cannot be any estoppel against the statute.
Since MOFA creates a statutory right in favour of organization of flat
purchasers to secure conveyance of promoter’s right, title and interest, if
it is found that by way of contract, lesser area of land or right lesser than
the one lawfully due under Section 11 is conveyed, the act of such
organisation in signing the deed of conveyance would not destroy the
statutory right under Section 11, which can be enforced under Section
11(3) by filing application before the Competent Authority.
C ONTENTION THAT ‘F AILURE ’ WITHIN THE MEANING OF S ECTION 11 OF
MOFA HAS NOT O CCURRED FOR R ESPONDENT N O . 1 TO A PPLY FOR D EEMED
ONVEYANCE OF DDITIONAL REA
C A A :
63) Mr. Khandeparkar has contended that ‘failure’ within the
meaning of Section 11(3) of MOFA has not occurred in the present case
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and that therefore the Competent Authority could not have granted
liberty to Respondent No.1 to apply for conveyance of additional land
admeasuring 1863.13 sq.m. Undoubtedly, occurrence of failure by the
promoter to convey his right, title and interest in the land and building
in favour of organization of flat purchasers becomes a jurisdictional fact
for the Competent Authority to exercise jurisdiction to entertain deemed
conveyance application and in absence of such failure, jurisdiction to
decide application for deemed conveyance cannot be exercised. Mr.
Khandeparkar has relied on judgment of this Court in Nahar Builders
(supra), in which it is held in para-26 to 28 as under:
26) As observed above, failure on the part of the promoter to convey land as per
Section 11(1) becomes the jurisdictional fact for the Competent Authority to
exercise jurisdiction under Section 11(3) to grant deemed conveyance. It is
therefore necessary to examine whether a ‘failure’ within the meaning of
Section 11(1) of MOFA has occurred in the present case for the Competent
Authority to exercise jurisdiction under Section 11(3).
27) Though Petitioner No.1 agreed and undertook to convey land admeasuring
13,629.84 sq.m. in terms of the consent terms dated 25 September 2013, he did
not perform the obligation. While it completed the construction of Blue Bell
building taking benefit of Clause-5 of the consent terms, it failed to execute
and/or register conveyance deed in favour of Respondent No.1-Society. The
Society waited for 12 long years for Respondent No.1 to execute the
conveyance. In my view therefore, there is a ‘failure’ on the part of Petitioner
No.1 to convey the land and the building within the meaning of Section 11(1)
of MOFA. The case does not involve a situation where conveyance in terms of
the decree is actually executed. If such conveyance was executed, the ‘failure’
within the meaning of Section 11 (3) would not have occurred and Competent
Authority could not have exercised the jurisdiction. However, since conveyance
was actually not executed, it will have to be necessarily assumed that there is a
‘failure’ on the part of Petitioner No.1 to convey the land and the building.
28) Section 11(1) of MOFA mandates that the promoter shall convey his right,
title and interest in the land and the building and ‘shall execute’ all relevant
documents therefor in accordance with the agreement executed under Section
4. The act of ‘conveyance’ does not occur unless a Deed of Conveyance is
executed and registered. It is only when the act of registration of the
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Conveyance Deed happens that it can be presumed that there is fulfillment of
statutory duty under Section 11(1) and that there is no ‘failure’ on the part of
the promoter. However, mere ‘agreement’ by the promoter for conveyance
would not be sufficient for the purpose of holding that there is fulfillment of
the statutory duty and that there is no failure on the part of the promoter
within the meaning of Section 11(3) of MOFA. Failure would not occur only
when the act of conveyance is completed. The legislative objective behind
Section 11 is to ensure that the organisation of flat purchasers must be vested
with title, and legal effect of vesting gets completed only when a Deed of
Conveyance is executed and registered. Therefore, mere agreement or
undertaking by a developer to convey the land and building would not be
sufficient to hold that there is no failure within the meaning of Section 11(3) of
the Act.
64) Relying on the observations made by this Court in para-27
of the judgment, Mr. Khandeparkar has contended that since conveyance
in terms of the decree is executed, ‘failure’ within the meaning of Section
11(3) of MOFA has not occurred and that therefore the Competent
Authority does not have jurisdiction to entertain the application of
Respondent No.1 for conveyance of additional area over and above what
is conveyed through the Deed of Conveyance. Ordinarily, what Mr.
Khandeparkar contends deserves acceptance. However, in the present
case, Respondent No.1 has not invoked the jurisdiction of the Competent
Authority under Section 11(3) of MOFA. It is while deciding Petitioner’s
application for deemed conveyance under Section 11(3) that the
Competent Authority has arrived at a conclusion that Petitioner is
entitled to conveyance of only proportionate land in the layout. After
conveyance of proportionate land in favour of the Petitioner and after
considering the area of 2040 sq.m. conveyed in favour of Respondent
No.1, balance land would have still remained in the ownership of Kent.
To avoid this incongruous situation where the developer Kent would
derive undue benefit of ownership of balance land in the layout,
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Competent Authority has granted liberty to Respondent No.1 to file
application for deemed conveyance of the balance portion of land. Such
arrangement made by the Competent Authority subserves the ends of
justice and I find no reason to exercise extraordinary jurisdiction under
Article 227 of the Constitution of India to disturb this arrangement by
accepting technical submissions canvassed on behalf of the Petitioner.
O BLIGATION OF FLAT PURCHASERS OF K ENT H EIGHTS BUILDING TO BECOME
MEMBERS OF P ETITIONER - SOCIETY
65) It is contended by Mr. Khandeparkar that under the
Agreement dated 17 October 1995, [permission to construct building by
utilizing TDR/ insensitive FSI was granted subject to the flat purchasers
of that building becoming members of Petitioner-society. It is also
contended that even in the Agreements for Sale executed by Kent with
flat purchasers, a specific obligation was imposed for becoming members
of Petitioners-society. However, flat purchasers of Kent Heights building
did not apply for membership with Petitioner-society and instead opted
for formation and registration of their own society. If Petitioner was
aggrieved by formation and registration of new society, it ought to have
opposed the same by filing appeal against Registration order. It however
failed to do so. Having not questioned formation of Respondent No. 1-
society, Petitioner cannot now contend that it cannot get conveyance of
land due to it. Once a housing society is registered, conveyance of land
and building becomes its lawful entitlement under MOFA. If Petitioner
wanted the entire layout land conveyed to it, it ought to have prevented
formation of another society in the layout. At this stage, Petitioner
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cannot be permitted to raise the objection of flat purchasers of kent
Heights Building forming a separate society.
66) Mr. Khandeparker's contention of Respondent No. 1-society
selectively relying on Agreement dated 17 October 1995 does not appeal
to this Court. Because the stipulation with promoter for membership
with Petitioner-society is not adhered to, it does not relieve Petitioner of
consequences of consent given by it. It may be that violation of
stipulation in Agreement dated 17 October 1995 about compulsory
membership with Petitioner-society gave rise to remedy to the Petitioner
to challenge formation of Respondent No. 1-society. However, Petitioner
failed to exercise that remedy. Violation of that contractual stipulation
did not give a handle to the Petitioner to walk out of the consent given
by it. In my view therefore, non adherence to contractual stipulation for
compulsory membership of Petitioner-society is wholly irrelevant for
deciding the issue at hand.
P ROPORTIONATE L AND D IVISION
67) It is Petitioner's case that even if the principle of
proportionate land division is to be applied in the facts and
circumstances of the present case ignoring the absence of cause of action
for Respondent No.1 in view of execution of registered Deed of
Conveyance through execution of decree, Respondent No.1 is entitled to
secure conveyance of land corresponding to only inherent BUA of 980.27
sq.m. This contention is premised on the fact that when the original
plans were sanctioned and OC was issued in respect of Petitioner’s
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building, total BUA sanctioned was 7710.65 sq.m., out of which BUA
admeasuring 6730.38 sq.m. was utilised in construction of Petitioner’s
building, leaving the balance BUA of only 980.27 sq.m. This position is
buttressed by the OC plan issued in respect of the building of
Respondent No.1-society on 23 October 2008 which again shows that the
balance basic FSI in respect of the plot was only 980.27 sq.m.
68) However, in the present case, there appears to be consent by
the Petitioner-society to the revised plan for putting up additional
construction over and above BUA of 980.27 sq.m. by loading additional
TDR and incentive FSI. As observed above, after Kent purchased the
larger property with balance BUA of only 980.27 sq.m., it approached
Petitioner-society with a proposal for loading of additional BUA in the
proposed building through TDR and incentive FSI. Accordingly,
agreement dated 17 October 1995 came to be executed between
Petitioner and Kent under which Petitioner granted rights in favour of
Kent to consume FSI/BUA in respect of larger property to the extent of
52000 sq.ft. equivalent to 4830 sq.m. It would be apt to refer to the
relevant clauses of the Agreement dated 17 October 1995. Clauses-2, 3
and 7 of the Agreement read thus:
2. The construction for availing of the FSI shall be carried out by the party of
the First Part on a portion of the plot of land, which portion is shown
delineated by red colour boundary line on the plan hereto annexed, i.e. on the
eastern side of the existing road on maximum upto 50% of the Existing Road,
from gate to C Building.
I. Consideration of Rs.40,00,000/- (Rupees Forty Lacs Only) as consideration on
execution of these presents for the rights to utilise the transferable
development right upto 40% available under the D.C. rules of the total property
area.
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II. Rs.11,00,000/- (Rupees Eleven Lacs Only) for full and final settlement of
accounts between the original owners and the society.
III. Rs.15,30,000/- (Rupees Fifteen Lacs Thirty Thousand Only) for rights to
utilise 1700 Sq.ft. at the rate Rs.900 per Sq.ft. FSI of the staircase area of the
building occupied and held by the party of the Second Part and if for any
reason the said staircase FSI is not available, the party of the second part shall
refund Rs.900/- per Sq.ft. to the party of First part and if more staircase FSI is
availed or availed by to them, the party of first part will pay at the rate of
Rs.900/- per additional Sq.ft. to the party of the second part on sanction of the
IOD within 1 month transaction should be completed.
IV. Party of the first part is allowed to construct the building upto half portion
of the present Internal Eastern Road from gate to “C” Bldg. road, Office of the
society to the extend of 200 sq.ft. shall be constructed at Eastern side of the
existing road subject to approval of BMC.
3. In the event there being further FSI available due to increase or
enhancement of D.C. Rules and the party of the first part desiring to avail and
consume additional FSI the same can be done only after getting consent of the
party of the second part in writing.
7. It is agreed that all the flats and other premises acquired shall be enrolled as
members of the party of the Second part on payment of share money, security
deposit etc, by the said flat/shops acquirers to the party of the second part. The
party of the First part hereby confirm that adequate provision shall be made in
the Agreement that may be executed by them with the prospective
flats/premises including with regard to the said members observing and
following rules and regulations and bye-laws of the Society, PROVIDED
HOWEVER for sake of convenience and clarity, the members who will be
acquiring flats and other premises through the party of the First part shall be
entitled to form its independent Ad-Hoc Committee to manage and look after
the day to day affairs related to the building that will be constructed by the
party of the First part in pursuance of these presents PROVIDED FURTHER that
prior consent in that behalf shall be obtained from the party of the Second
Part.
69) Thus, the Petitioner-society permitted Kent to utilise BUA in
excess of 980.27 sq.m. and upto the extent of 4830 sq.m., which included
loading of TDR upto the extent of 40% of total area of larger property
and BUA/FSI in respect of staircase/lift upto 1700 sq.ft. Petitioner did not
permit additional construction in the layout free of cost and accepted
valuable consideration for permitting Kent to do so. It accepted an
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amount of Rs.40 lakhs towards consideration for right to utilise 40% of
the available TDR under the Regulations, Rs.11 lakhs towards settlement
of accounts with original owners and Rs.15,30,000/- for utilising
staircase/lift FSI in respect of Petitioner’s own building at the rate of
Rs.900 per sq.ft. It was agreed that if staircase/lift FSI out of Petitioner’s
building was not made available, Kent was to refund Rs.900 per sq.ft to
Petitioner and if additional FSI became available out of staircase/lift,
Kent was to pay additional amount of Rs.900 per sq.ft. to the Petitioner
for such additional FSI/TDR. Petitioner also agreed for exact location at
which the new building was to be constructed and agreed to construct
office admeasuring 200 sq.ft. for the Petitioner-society. Under Clause 3 of
the Agreement, it was agreed that in the event of any further FSI being
made available due to change in the DC Regulations, Kent was to avail
and consume the same only after getting fresh consent of Petitioner in
writing.
70) Thus, the case involves express consent in writing by
Petitioner for construction of building of Respondent No.1-society by
consuming BUA upto 4830 sq.m. by loading TDR as well as
staircase/incentive FSI. Petitioner accepted substantial consideration of
Rs.40 lakhs, Rs.11 lakhs and Rs.15,30,000/- (total Rs.66.3 lakhs) in
addition to getting office admeasuring 200 sq.m. constructed for itself.
The case therefore would be squarely covered by exception recognised by
this Court in paras-210 and 211 in judgment in Satellite Garden-I CHSL
(supra). This Court has recognised departure from the principle of
freezing/crystallisation of land area where an organisation of flat
purchasers gives express consent in writing to revision of plan which
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involves loading of TDR/incentive FSI. This Court has held in paras-210
and 211 as under;
210) It is not that in every case the plans are revised behind the back of already
constructed buildings. There may be cases where the developer has secured
written consent from the society of building already constructed as per
originally sanctioned plan for effecting a revision therein for availing
additional BUA. In some cases, the existing societies may have monetized their
right of giving consent by securing consideration in the form of money or
additional facilities and may have given consent for revision in the plan. In
such cases, whether the concept of land freezing/crystallisation as on the date
of formation of the first society can be applied? In my view, the answer is in the
negative. Where there is express consent by the flat purchasers/societies of
earlier buildings for revision of plans for construction of subsequent buildings,
the freezing/crystallisation concept cannot apply. Where such express written
consent is given, land division can be undertaken on the basis of subsequently
revised plan, which has such consent. However, in every case where such
express consent is not given, proportionate land division must necessarily be
on the basis of the first sanctioned plan or at least the sanctioned plan which
was in existence at the time of application of concept of freezing.
211) It is contended that Competent Authority being a tribunal of limited
jurisdiction cannot go into the issue of existence of consent. There can be no
dispute about this proposition and since existence or otherwise of the consent,
being a matter of intrinsic evidentiary inquiry, the Competent Authority would
not have jurisdiction to decide that issue. However, in its summary jurisdiction,
if the developer or society of subsequent building produces a consent
letter/affidavit, I do not see much difficulty in the Competent Authority in
acting on the same and assuming that there exists a consent for undertaking
the exercise of proportionate land division. If a competing society has any
contrary claim, the same can always be taken for adjudication to the Civil
Court as the order of deemed conveyance passed by the Competent Authority
is not final determinative of rights and entitlement of parties qua the land
conveyed. On the other hand, if no prima facie written evidence of consent is
produced, the Competent Authority can proceed on the basis of absence of
consent and apply the principle of freezing/crystallisation of land entitlement
as per the plan in existence at the time of expiry of the prescribed period under
Section 11 of MOFA and Rule 9 of MOF Rules for the first society. In such a
case, the developer/society of latter building can approach the Civil Court to
establish existence of consent. In my view therefore, though the Competent
Authority may not be able to resolve the issue of existence or otherwise of
consent but can make an adjudication on the basis of prima facie
existence/absence of material to indicate consent. I am supported in my view
by the judgment of this Court in Nook CHS Ltd. (supra).

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71) While laying down the principles for conveyance of land in
the layout development, this Court has held in para-223 of the judgment
as under:
223) From the above discussion, following principles emerge:
(a) The right to secure conveyance of the land and the building inures in favour
of the organisation of flat purchasers upon expiry of the period prescribed in
Section 11 of the MOFA read with Rule 9 of MOF Rules.
(b) Consequently, in a layout development, the proportionate land which was
meant to be conveyed in favour of an organisation of flat purchasers, as on the
date of expiry of period of four months from its formation, stands crystallised
and frozen and shall not get reduced merely on account of subsequent revision
of the plans.
(c) The conveyance or deemed conveyance of land in a layout development by
undertaking the exercise of land division proportionate to BUA used in
construction of each building shall be on the basis of either the first sanctioned
plan or the plan sanctioned as on the date when freezing/crystallisation occurs
i.e. when the period specified under Rule 9 of the MOF Rules expires.
(d) The above principle shall however be subject to an exception where
the flat purchasers of earlier buildings/their societies have given a
written consent for modification/revision of the plan, in which case, the
exercise of proportionate land division can be undertaken by taking into
consideration the plan, which has such consent.
(e) The Competent Authority accordingly needs to convey the proportionate
land to the societies in a layout by taking into consideration the sanctioned
plan, which existed at the time when the time prescribed under Rule 9 of the
MOF Rules had expired from the date of formation of organisation of flat
purchasers or the plan which has the written consent as discussed above,
whichever is later.
(f) If the developer or any other organisation of flat purchasers in the layout
are aggrieved by land division as discussed above and are able to demonstrate
land entitlement to the contrary, they need to file a suit questioning the land
conveyed by the Competent Authority. A society seeking conveyance of land by
application of principle of freezing/crystallisation need not be driven to Civil
Court for seeking conveyance of the proportionate land.
(g) Developers and promoters shall give adequate notice to the flat purchasers
about construction of the building by use of incentive FSI / TDR having and the
potential risk of securing lesser land as compared to BUA used in construction
of their building(s).
(emphasis added)
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72) Thus, in a case where there is express consent in writing for
modification/revision of the plan for putting up additional construction
by utilisation of TDR/incentive FSI, the principle of
freezing/crystallisation does not apply. It is held in Satellite Garden I
CHSL that in cases involving written consent, Competent Authority
needs to undertake the exercise of proportionate land division by taking
into consideration the plan which is referred to in the written consent
and not the originally sanctioned plan.
73) Applying the ratio enunciated by this Court in Satellite
Garden I CHSL , in my view proportionate land division needs to be
undertaken in the context of the Agreement dated 17 October 1995,
which contains express written consent by the Petitioner-society for
additional construction upto BUA of 4830 sq.m.
74) Mr. Khandeparkar has relied on judgment of this Court in
Radha Vishweshwar (supra) in support of his contention that when
buildings are constructed by using different FSI norms, the principle of
proportionate land division as per the GR dated 22 June 2018 cannot be
made applicable. This Court held in paras-38 and 39 of the judgment in
Radha Vishweshwar is as under:
38) In my view, there is fundamental flaw in the methodology adopted by
Plaintiffs’ Architect for dividing the land in the layout considering the peculiar
facts and circumstances of the case. In ordinary circumstances, what has been
done by the Architect could have been accepted. In fact, the GR dated 22 June
2018 contemplates division of land in a layout proportionate to the built-up
area utilised for construction of building of each society. However, there is a
reason why such a formula of division of land proportionate to built-up area
cannot be adopted in the present case. This is because the buildings are
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constructed by applying different FSI norms. As observed above, building of
Defendant No.1 has been constructed by use of FSI 1.00 and this is how built-
up area of 2276.00 sq.mtrs. has been sanctioned for construction of buildings
of First Defendant-Society. If the same FSI norms of 1.00 was to be applied for
construction of buildings of Plaintiff-Societies, the formula of subdivision of
land corresponding to utilisation of FSI could have been applied. In that case,
the built-up area that would have been sanctioned for construction of
buildings of Plaintiff-Society could only be about 1282.65 sq. mts. However, by
utilising FSI of 1.84 by loading external TDR of 3463.90 sq.mtrs, buildings of
Plaintiff-Societies are constructed with massive built-up area of 4535.43
sq.mtrs. though the balance land available for construction was only about
1282.65 sq.mtrs. Therefore the simple methodology of subdivision of land
corresponding to utilised built up area for each building cannot be applied in
the present case. Doing so would result in Plaintiff-Societies walking away with
larger share of land on account of higher built up area of 4535.43 sq mtrs. used
in its buildings as compared to much smaller built up area of 2276.00 sq. Mtrs.
used for construction of building of Defendant No.1-Society. The division of
land, RG area and road setback FSI in proportion of 66.59 % for Plaintiff-
Societies and 33.41% for Defendant No.1-Society cannot be accepted.
39) Thus, application of formula of subdivision of land corresponding to
utilised built up area in the present case would amount to comparing an apple
with an orange. Though the said formula has been recognised in various
judgments of this Court, as well as in the G.R. dated 22 June 2018 and seeks to
tackle tendency on behalf of the Developers in not conveying land for several
years, grant of proportionate land area to Plaintiffs commensurate to the built
up area utilised for their building would put Defendant No.1-Society to a
disadvantageous position. Mere execution of the Agreement dated 29 October
2004 by the Defendant No.1-Society permitting the entire layout property as
recipient plot for use of TDR does not mean that the Defendant No.1- Society
has diluted its rights in respect of land at CTS No. 507/C and half of CTS
No.507/B. As observed above, the said Agreement actually proceeds on
admission of use and occupation of CTS No. 507/C and half of CTS No.507/B by
Defendant No.1-Society. I am therefore prima-facie not inclined to accept the
computations made by Plaintiff’s Architect in Certificate at Exh.B to the Plaint.
The issue of conveyance of land in a layout to different societies whose
buildings are constructed by use of different FSI, as of now, appears to be not
decided in any judgment. Therefore, an equitable argument needs to be done
in the unique facts and circumstances of the case, which I propose to do in
following paragraphs.
75) Relying on the above findings in Radha Vishweshwar , Mr.
Khandeparkar submits that if Respondent No.1-society is granted
conveyance proportionate to the BUA utilised in construction of its
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building, it would walk away with larger share of land and that the same
would confer undue benefit on Respondent No.1 because its building has
TDR/incentive FSI as compared to Petitioner’s building being
constructed with base/inherent FSI. However, the case of Radha
Vishweshwar did not involve grant of consent by a society to the
modified/revised plan contemplating use of TDR/incentive FSI, which is
the case here.
76) In my view, therefore, land entitlement of Respondent No.1-
society cannot be restricted to the proportionate ratio of BUA of 980.27
sq.m. and the same is required to be determined by taking into
consideration BUA of 4830 sq.m. to which Petitioner consented in
writing. To this extent only, the Competent Authority has committed an
error as it has taken into consideration the actual BUA utilised in
construction of building of Respondent No.1 of 6899.37 sq.m. The total
land entitlement of 4497.58 sq.m. determined by the Competent
Authority is based on utilisation of BUA of 6730.38 sq.m. As observed
above, Petitioner had consented for consumption/utilisation of BUA of
only 4830 sq.m. As per Clause-3 of the Agreement dated 17 October
1995, if Kent desired to utilise any further permissible FSI, the same was
to be done only after securing fresh consent of Petitioner in writing for
construction of BUA in excess of 4830 sq.m. Kent did not secure consent
of Petitioner-society. Therefore, for BUA of 2069.37 sq.m. ( 6899.37 sq.m.
actually utilized less 4830 sq.m. which Petitioner had consented to ), there is
no consent by the Petitioner. Therefore, Respondent No.1 is not entitled
to take into consideration BUA admeasuring 2069.37 sq.m. (for which
there is no consent) for determining the proportionate land division.
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77) As per the directions of this Court, Mr. Tamboly has placed
on record the figures of proportionate land division calculated on the
basis of BUA of Respondent No.1-society of 4830 sq.mts ( 52,000 sq.ft.)
which is as under:
B. Calculation on basis of Kent’s built-up area taken at 4,830 sq.m. (52,000
sq.ft.)
Built-up FSI Sq.m. Ratio
Vardhman Nagar CHS (Buildings 1 to 4) 6730.38 58.22%
Kent Heights CHS (Building No. 5) 4830.00 41.78%
Total 11560.38 100.00%
Applied to the plot:
Society Net plot RG area Set-back Total
Vardhman Nagar CHS 4489.09 792.19 21.40 5302.68
Kent Heights CHS 3221.56 568.51 15.35 3805.42
Total 7710.65 1360.70 36.75 9108.10
78) Therefore, the land entitlement of Respondent No.1-society
would only be 3805.42 sq.m. and the balance land of 5302.68 sq.m. needs
to be conveyed in favour of the Petitioner.
79) Mr. Khandeparkar has submitted that conveying land
admeasuring 5302.68 sq.m. would seriously prejudice Petitioner's
entitlement to reconstruct its building under Regulation 33(9) of DCPR,
2034. It appears that under Regulation 33(9), cluster redevelopment is
permissible only if the total plot area is atleast 6,000 sq.m. in suburban
area of Mumbai City. If cluster redevelopment is permissible for the
Petitioner-society, the members would receive higher FSI upto 4.00 as
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compared to maximum permissible FSI of 3.00 for non-cluster
development. It is contended that the building of the Petitioner-society
is over 42 years old and its members reside in 6 flats with a configuration
of 300 sq.m. It is further contended that under the cluster
redevelopment, members of the Petitioner-society would secure larger
flats in the new building of decent size.
80) In my view however, permissibility for the Petitioner to
undertake cluster redevelopment cannot be a factor relevant for deciding
its land entitlement. One cannot apply a reverse formula of first
determining the quantum of land parcel required for cluster
development and then determine land entitlement of a society. The
proper method is to first decide the land entitlement and right of the
society to redevelop its building and then accordingly proceed depending
on the applicable Development Control Regulations. In any case, this
Court has already made several attempts to settle disputes between the
parties and had urged both the societies to come together and go for
joint cluster redevelopment. However, due to serious disputes about the
land sharing, the settlement could not go through. Even after conveying
land admeasuring 5302.68 sq.m. for Petitioner and 3805.42 sq.m. for
Respondent No.1-society, they can still come together and apply for
cluster redevelopment. Therefore, denial of opportunity to undertake
cluster redevelopment for the Petitioner-society alone cannot be a
ground for conveying to it the land, which it is not lawfully entitled to.
81) In my view therefore, the proceedings deserve to be
remanded to the Competent Authority for issuance of a fresh certificate
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of deemed conveyance in favour of the Petitioner-society in respect of
total land admeasuring 5302.68 sq.m. with liberty to Respondent No.1-
society to apply for conveyance of balance land admeasuring 1765.42
sq.m. ( 3805.42 sq.m. less 2040 sq.m. ).
N ON -I NTERFERENCE B Y T HIS C OURT I N E XERCISE O F E XTRAORDINARY
URISDICTION
J
82) In the present case, Petitioner-society is attempting to grab
additional land than the one lawfully due to it. As observed above, the
correct and lawful entitlement of the Petitioner-society in the layout is
land admeasuring 5302.68 sq.m. However, it has filed the present
Petition with a view to ensure that it secures conveyance of land
admeasuring 7068.10 sq.m. ( total land of 9108.10 sq.m. less 2040 sq.m.
conveyed to Respondent No.1 vide deed dated 31 December 2013 ). To grab
that additional portion of land, Petitioner-society has taken the shelter
of legal principles such as res-judicata, estoppel, conveyance secured
through execution of decree, etc. Thus, by presenting legal formulations,
Petitioner is seeking to grab excess piece of land, which is lawfully due to
Respondent No.1-society. The issue for consideration is whether this
Court can exercise extraordinary jurisdiction under Article 227 of the
Constitution of India to aid the Petitioner-society in doing so? In a given
case, those legal formulations may be capable of being accepted by a
Court of law. Once a decree of a Civil Court is secured and the same is
sought to be executed, it is ordinarily not open for the plaintiff to file
fresh proceedings on the same cause of action. However, if this legal
principle is strictly applied to the facts and circumstances of the present
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case, it would result in a situation where Respondent No.1 would be
deprived of its lawful land entitlement and the same would permit
Petitioner to grab extra portion of land. This Court would not permit its
extraordinary jurisdiction under Article 227 to be invoked for achieving
such an oblique motive. Once this Court is satisfied that the outcome of
the proceedings is satisfactory, it would not exercise extraordinary
jurisdiction under Article 227 of the Constitution of India to correct
either an error of fact or even an error of law. Supervisory jurisdiction of
this Court under Article 227 is not to correct every error of fact or even a
legal flaw when the final finding is justified or can be supported. Reliance
by Mr. Tamboly on judgment of the Hon’ble Apex Court in Garment
Craft (supra) in this regard is apposite, in which it is held in para 15 of
the judgment as under:
15. Having heard the counsel for the parties, we are clearly of the view that the
impugned order [ Prakash Chand Goel  v.  Garment Craft , 2019 SCC OnLine Del
11943] is contrary to law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The High Court exercising
supervisory jurisdiction does not act as a court of first appeal to reappreciate,
reweigh the evidence or facts upon which the determination under challenge is
based. Supervisory jurisdiction is not to correct every error of fact or even
a legal flaw when the final finding is justified or can be supported . The
High Court is not to substitute its own decision on facts and conclusion, for
that of the inferior court or tribunal. [ Celina Coelho Pereira  v.  Ulhas
Mahabaleshwar Kholkar , (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The
jurisdiction exercised is in the nature of correctional jurisdiction to set right
grave dereliction of duty or flagrant abuse, violation of fundamental principles
of law or justice. The power under Article 227 is exercised sparingly in
appropriate cases, like when there is no evidence at all to justify, or the finding
is so perverse that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is no miscarriage of
justice.
(emphasis added)
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M.S. Sanjay
83) More recently, in (supra), the Apex Court has
held that interference by a Writ Court for mere infraction of statutory
provisions or norms cannot be a matter of course if such infraction has
not resulted in injustice. The Apex Court has held that legal formulations
cannot be enforced de hors from the realities of the facts and situation of
a case. While administering law, it is to be tempered with equity and if
the equitable situation demands that legal formulations need not be
taken to their logical end, the High Court can mould the final order in
exercise of its extraordinary jurisdiction. If the High Court finds that the
order challenged in the petition is logically invalid, it can refuse to upset
the same with a view to do substantial justice. The Apex Court has held
in paras-9 and 10 of the judgment as under:
9. It is well settled that interference by the Writ Court for mere infraction of
any statutory provision or norms, if such in-fraction has not resulted in
injustice is not a matter of course. In the case of  Shiv Shanker Dal Mills  v.  State
of Haryana , (1980) 2 SCC 437, the dealers in that case had paid market fees at
the increased rate of 3%, which was raised from the original 2 per cent under
Haryana Act 22 of 1977. The excess of 1 per cent over the original rate was
declared  ultra vires  by this Court in the case of  Kewal Krishna Puri  v.  State of
Punjab , (1980) 1 SCC 416. The excess of 1 per cent over the original rate having
been declared  ultra vires , became refundable to the respective dealers from
whom they were recovered by the Market Committee concerned. The demand
for refund of the excess amounts illegally recovered from them not having been
complied with, the dealers filed Writ Petitions under Article 32 and
Article 226 of the Constitution for a direction to that effect to the Market
Committee concerned. The Market Committees contended that although the
refund of the excess collections might be legally due to the dealers, many of
them had in turn recovered this excess percentage from the next purchasers.
While disposing of the petition and laying down guidelines, this Court held as
under:
“Article 226 grants an extraordinary remedy, which is essentially
discretionary, although founded on legal injury. It is perfectly open for
the court, exercising this flexible power, to pass such order as public
interest dictates and equity projects. Courts of equity may, and
frequently do, go much further both to give and withhold relief in
furtherance of the public interest than they are accustomed to go where
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only private interests are involved. Accordingly, the granting or
withholding of relief may properly be dependent upon considerations
as of public interest.”
10.  It has been rightly observed that legal formulations cannot be
enforced divorced from the realities of the fact situation of the case.
While administering law it is to be tempered with equity and if the
equitable situation demands after setting right the legal formulations
not to take it to the logical end, the High Court would be failing in its
duty if it does not notice equitable consideration and mould the final
order in exercise of its extraordinary jurisdiction. Any other approach
would render the High Court a normal Court of Appeal, which it is not. It is a
settled principle of law that the remedy under Article 226 of the Constitution
of India is discretionary in nature and in a given case, even if some action or
order challenged in the petition is found to be illegal and invalid, the
High Court while exercising its extraordinary jurisdiction thereunder can
refuse to upset it with a view to doing substantial justice between the
parties.
(emphasis added)
84) In my view, this is a perfect case for invocation of principles
expounded tioned by the Hon’ble Apex Court in judgments of Garment
Craft and M.S. Sanjay . If the legal formulations presented by Mr.
Khandeparkar ( which may appear to be legally acceptable in facts of some
other case ) are strictly applied in the present case, the same would result
in gross injustice where Respondent No.1-society would be deprived of
its lawful entitlement thereby conferring undue benefit on the
Petitioner-society. By strictly applying the principle of proportionate
land division, Petitioner-society would be entitled to land admeasuring
only 5302.68 sq.m. since it consented for construction of building of
Respondent No.1-society by utilising BUA of 4830 sq.m. If the legal
objections presented by Mr. Khandeparkar about impermissibility for
Respondent No.1 to file application before the Competent Authority to
secure conveyance of balance land is accepted, the balance land
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admeasuring 1765.42 sq.m. would continue to be owned by the
developer-Kent. That land would neither by owned by the Petitioner-
society nor by the Respondent No.1-society. To cure this position, this
Court needs to uphold the order of the Competent Authority granting
liberty to Respondent No.1-society to apply for deemed conveyance of
balance portion of land by clarifying the exact area of the balance
portion which I have already done. I am therefore not inclined to accept
the legal objections presented by Mr. Khandeparkar which would result
in conveyance of entire balance portion of land (after deducting 2040
sq.m.) to the Petitioner-society, which is not lawfully due to it.
ONCLUSIONS
C
85) The conspectus of the above discussion is that the principle
of proportionate land division needs to be applied in the present case.
Accordingly, Petitioner and Respondent No.1-society are entitled to
conveyance of land proportionate to BUA area utilised in construction of
their buildings, subject to the caveat that the BUA of Respondent No. 1’s
building will have to be capped at the consent area. Since BUA
admeasuring 6730.38 sq.m. is utilised in construction of buildings of
Petitioner-society, it is entitled to own 58.22% land in the layout which
works out to 5302.68 sq.m. This area of 5302.68 sq.m. would comprise of
net plot area of 4489.09 sq.m., RG share of 792.19 sq.m. and setback area
of 21.40 sq.m. Though BUA utilised in construction of buildings of
Respondent No.1-society is 6899.37 sq.m., it is not entitled to receive
land in proportion to the actual BUA utilised in construction of its
building. This is on account of the fact that Petitioner No.1-society had
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given consent for utilisation of BUA of only 4830 sq.m. Accordingly, by
considering BUA of 4830 sq.m., Respondent No.1 is entitled to own
41.78% land in the layout. Accordingly, the proportionate share of
Respondent No.1 in the layout shall be 3805.42 sq.m. comprising of net
plot of 3221.56 sq.m., RG share of 568.51 sq.m. and setback advantage of
15.35 sq.m. Since land admeasuring 2040 sq.m. is already conveyed to
Respondent No.1-society, it shall be at liberty to apply for conveyance of
balance portion of land which shall be additional net plot area of 1181.56
sq.m. in addition to RG share of 568.51 sq.m. and setback advantage of
15.35 sq.m.
RDER
O
86) The Petition accordingly succeeds in part, and I proceed to
pass the following order:
i. Order dated 9 June 2025 passed by the Competent
Authority in Application No. 94 of 2020 is set aside.
ii. Application No. 94 of 2020 is remanded to the Competent
Authority for fresh adjudication.
iii. Respondent No.1 shall file an application for deemed
conveyance before the Competent Authority within a
period of 4 weeks.
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iv.
The Competent Authority shall decide Petitioner’s
Application No. 94 of 2020 together with the Application to
be filed by Respondent No. 1 and shall issue Certificates of
deemed conveyance in favour of the Petitioner and
Respondent No.1-society by conveying lands in the layout
in their favour in the following manner:
Society Net plot RG area Set-back Total
(sq.m.) (sq.m.) (sq.m.) (sq.m.)
Vardhman Nagar CHS 4489.09 792.19 21.40 5302.68
Kent Heights CHS 3221.56 568.51 15.35 3805.42
Total 7710.65 1360.70 36.75 9108.10
82. With the above directions, the Petition is partly allowed and
disposed of. There shall be no order as to costs.
NEETA
SHAILESH
SAWANT
[SANDEEP V. MARNE , J.]
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.10.22
17:54:53 +0530
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