Rashesh Co Op Hsg. Soc. Ltd vs State Of Maharashtra Thru. G. P. And Ors
- Court
- Bombay High Court
2026:BHC-AS:20135
wp10961-2025-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10961 OF 2025
Rashesh Cooperative Housing Society
Limited, A society registered under the
Maharahstra Cooperative Societies
Act, 1963, having its address at
Off 150 ft. Road, Near Maxus Mall,
Bhayandar (West), Thane 401 101
… Petitioner
Vs.
1. State of Maharashtra,
through Government Pleader,
Appellate Side, High Court,
Bombay
2. District Deputy Registrar, Thane
Dr. Kishore Mande,
the competent authority under the
Maharashtra Cooperative Societies
Act, 122963, having its office address
st
at Gamdevi Market Building, 1 Floor,
Near Gaodevi Maidan, Gokhale Road,
Thane (West) 400 602
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL GANESH
KULKARNI
Date: 2026.04.28
11:56:36 +0530
3. Shreeji Developers,
a partnership firm constituted under
Indian Partnership Act, 1932 having
its office address at Shop No.3,
rd
3 floor, Vrindavan Salasar Brijbhoomi
Complex, Bhayander (West),
Thane 401 101
4. Varsha Manharlal Mehta,
Age 62 years, Occupation Business
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5. Rashesh Manharlal Mehta,
Age 45 years, Occupation Business
6. Vishal Manharlal Mehta,
Age 40 years, Occupation Business,
Respondent Nos.4 to 6 r/at Wing “A”,
th
41/42, 43, 44, 4 floor, Malhar Coop.
Housing Society, Borsapada Road,
Opp. Gymkhana, Near Pawar Public
High School, Kandivali (West),
Mumbai 400 067
7. Shreeji Exhibitors,
having its office at Wing “A”,
th
41/42, 43, 44, 4 floor, Malhar Coop.
Housing Society, Borsapada Road,
Opp. Gymkhana, Near Pawar Public
High School, Kandivali (West),
Mumbai 400 067
8. The Estate Investment Co. Pvt. Ltd.
A company incorporated under the
Companies Act, 1913 having its
registered office address at 139,
Seksaria Chambers, Nagindas Master
Road, Fort, Mumbai 400 001
9. Vishal Cooperative Housing Society
Limited, a society registered under the
Maharashtra Cooperative Societies
Act, 1963, having its address at
150 Ft. Road, Near Masux Mall,
Bhayandar (West), Thane 401 101
… Respondents
Mr. Bhavin Gada with Mr. Deepak Shukla and Mr.
Praveen Maurya i/by BNS Legal for the petitioner.
Mrs. M.S. Srivastava, AGP for respondent Nos.1 & 2-
State.
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Mr. Venkatesh Dhond, Senior Advocate with Mr. Akshay
Patil, Mr. Suraj N. Naik, Ms. Ketkee Kamble, Ms.
Rashmi Raghavan i/by Mr. R.D. Suryawanshi for
respondent Nos.3 to 7.
Mr. Nimesh Bhatt for respondent No.8.
CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 7, 2026.
PRONOUNCED ON : APRIL 28, 2026
JUDGMENT:
1. By the present petition instituted under Articles 226 and 227
of the Constitution of India, the petitioner has called in question
the legality, correctness, and propriety of the judgment and order
dated 8 July 2025 passed by respondent No.2 in Application
No.379 of 2023.
2. The facts giving rise to the present proceedings, as set out by
the petitioner, may briefly be stated thus. The petitioner is a co-
operative housing society duly registered under the provisions of
the Maharashtra Co operative Societies Act, 1960. The building of
the petitioner society came to be constructed by respondent No.3,
of which respondent Nos.4 to 6 are stated to be the partners. It is
the case of the petitioner that late Manharlal B. Mehta and Varsha
M. Mehta were owners and/or otherwise entitled in respect of 23
parcels of land situated at Village Bhayandar forming part of a
larger tract of land. The development plan/layout in respect of the
larger property came to be sanctioned by the Mira Bhayander
Municipal Corporation on 23 March 2006. Thereafter, on 5 August
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2006, development rights together with FSI in relation to the
entire land were granted in favour of respondent No.3. Revised
commencement certificates thereafter came to be issued by the
competent local authority on 23 March 2006 and 26 June 2007
respectively. Subsequently, an occupation certificate in respect of
the building of the petitioner society was issued by the local
authority on 2 December 2013.
3. The petitioner society came to be formed on 1 December
2015. According to the petitioner, notwithstanding such formation,
respondent No.3 failed and neglected to execute conveyance in
favour of the petitioner society. It is further stated that on 22 June
2018, the Government issued notification for implementation of
the scheme relating to deemed conveyance. Thereafter, the
petitioner obtained survey report of the subject land prepared by
Mr. M.B. Rane on 4 January 2022. A legal notice through Advocate
thereafter came to be issued by the petitioner society on 11 May
2023 to respondent Nos.2, 3 to 7 and one Pravin Ranchorebhai
Patil and others. Respondent No.8, by communication dated 29
May 2023, granted it’s no objection before respondent No.2 in
respect of conveyance of the land in favour of the petitioner. On 9
June 2023, the petitioner society further obtained Architect’s
Certificate/Report regarding the proportionate area stated to be
conveyable in favour of the petitioner society. On 19 June 2023,
the petitioner society instituted Application No.379 of 2023 before
respondent No.2 seeking issuance of certificate of deemed
conveyance in accordance with the applicable Government
Resolution. Pursuant thereto, respondent No.2 issued notice in
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Form X on 6 July 2023 and also caused public notice to be
published on 11 July 2023. Respondent No.4 filed reply affidavit
on 31 July 2023. Thereafter, respondent Nos.3, 4 and 7 filed joint
reply affidavit on 4 September 2023. The petitioner filed rejoinder
affidavits to the replies of the respondents on 21 August 2023 and
11 September 2023. Written submissions also came to be tendered
by the petitioner on 25 September 2023. It appears that
respondent No.2 thereafter passed an order dated 11 October
2023 granting conveyance only to the extent of plinth area. Being
aggrieved thereby, the petitioner approached this Court by filing
writ petition challenging the said order. By judgment and order
dated 11 February 2025, this Court was pleased to set aside the
aforesaid order and remand the matter for fresh consideration.
4. After remand of the proceedings, the petitioner obtained
fresh Architect’s Certificate dated 15 April 2025. Based thereon,
the petitioner preferred amendment application on 28 April 2025
placing on record the fresh Architect’s Certificate. The respondents
filed reply to the said amendment application on 22 May 2025, to
which the petitioner filed rejoinder on 12 June 2025. According to
the petitioner, respondent No.2, on 24 June 2025, orally declined
to hear the amendment application and instead directed the
parties to place on record further fresh Architect’s Certificate in
addition to the amendment application already filed. In
compliance thereof, the petitioner obtained another fresh
Architect’s Certificate dated 26 June 2025. The petitioner
thereafter tendered written submissions along with judgments and
the further Architect’s Certificate before respondent No.2 on 1 July
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2025. By the impugned order dated 8 July 2025, respondent No.2
rejected Application No.379 of 2023 and thereby declined grant of
deemed conveyance in respect of the subject land together with
the building standing thereon. Being aggrieved by the said order,
the petitioner has preferred the present writ petition.
5. Mr. Gada, learned Advocate appearing for the petitioner,
invited the attention of this Court to the earlier order dated 11
February 2025 and submitted that this Court had specifically
directed respondent No.2 to pass a fresh order while keeping in
view the guidelines contained in the Government Resolution dated
22 June 2018. He submitted that while remanding the
proceedings, this Court had expressly kept open all rights and
contentions of the parties regarding the entitlement of the
petitioner to conveyance of plinth area and appurtenant area, and
had directed respondent No.2 to decide the application afresh in
accordance with the said guidelines of 2018. Learned counsel
further submitted that this Court had also expressly recorded the
statement made on behalf of the petitioner that the society would
substantially claim conveyance in respect of appurtenant area in
terms of Guideline No.(iv)(2) of the Government Resolution dated
22 June 2018. He further pointed out that liberty was also granted
to the petitioner to urge before respondent No.2 that the
appurtenant area of the building would include proportionate
share in the recreational ground.
6. Learned counsel further submitted that under the
Government Resolution dated 22 June 2018, along with the
undivided share in occupancy rights proportionate to the
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construction area of the building of the society, or with reference
to ground coverage/plinth area, the completed building or its co-
operative society is also entitled to open spaces, common services,
common facilities and access roads. According to him, such
benefits were not granted in the present case. He further submitted
that even as per the pleadings of respondent Nos.3, 4 and 7, as
also the Architect’s Certificate relied upon by them, the petitioner
was entitled to setback area admeasuring 2201.56 square meters
in addition to the plinth area. It was therefore contended that
despite such clear and categorical admission on the part of the said
respondents, respondent No.2 has restricted the conveyance only
to the plinth area of the petitioner’s building.
7. Learned counsel next submitted that respondent No.3 had
obtained revised sanctioned plans during the period 2018 to 2019
without obtaining prior consent of the petitioner society and
thereby acted in breach of the mandatory procedure requiring
consent of two thirds of the allottees as contemplated under
Section 14 of the MahaRERA. He submitted that the application in
the present case had been preferred by the petitioner society itself
and not by any federal society or apex body, and therefore the
objection founded on such ground was misconceived. According to
him, once the petitioner society came to be formed, a statutory
obligation arose under the provisions of the Maharashtra
Ownership Flats Act upon respondent No.3, being
promoter/developer, to execute conveyance in favour of the
petitioner society. It was urged that the concept of a federal society
or apex body cannot be invoked so as to defeat or circumvent the
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statutory obligation of granting conveyance in favour of an
individual society in respect of that portion of the land to which it
is lawfully entitled.
8. Learned counsel further submitted that reliance placed upon
the certificate produced by the respondents restricts the
appurtenant area to 1050 square meters, whereas the correct
quantification, according to the petitioner, based upon sanctioned
plans and proportionate built-up area, comes to 3289.80 square
meters as certified under the Architect’s Certificate dated 26 June
2025. He submitted that such substantial discrepancy materially
affects the ownership rights of the petitioner society as well as its
future redevelopment potential. According to him, the impugned
order neither explains nor justifies the said discrepancy and
contains no rational analysis in that regard. It was further
contended that respondent No.2 has narrowly construed the
remand order of this Court as if it merely required acceptance of
the respondents’ certificate, without giving due effect to the
specific direction to pass a fresh order while considering the
Government Resolution dated 22 June 2018. According to the
petitioner, such restrictive interpretation defeats the very purpose
of remand and renders the earlier order of this Court ineffective.
9. Learned counsel submitted that, as per the Architect’s
Certificate relied upon by the petitioner, the area liable to be
conveyed in favour of the applicant society, namely, Rashesh Co
Operative Housing Society Limited, aggregates to 3987.16 square
meters together with proportionate undivided rights in the
recreational ground area admeasuring 703.62 square meters,
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making a total of 4690.78 square meters out of the larger area
admeasuring 23464.93 square meters. The said claim is stated to
comprise 565.07 square meters from old Survey No.661
corresponding to new Survey No.262 Hissa No.1 (Part), 787.78
square meters from old Survey No.661 corresponding to new
Survey No.262 Hissa No.3 (Part), 52.13 square meters from old
Survey No.776 corresponding to new Survey No.278 Hissa No.1B
(Part), 257.00 square meters from old Survey No.677
corresponding to new Survey No.277 Hissa No.1 (Part), 1932.00
square meters from old Survey No.677 corresponding to new
Survey No.277 Hissa No.2 (Part), 23.00 square meters from old
Survey No.677 corresponding to new Survey No.277 Hissa No.4,
and 1073.80 square meters from old Survey No.677 corresponding
to new Survey No.277 Hissa No.5, all situated at Village
Bhayander, Taluka Thane, District Thane. In addition thereto, the
petitioner claims entitlement to 1498.41 square metres out of
7495.57 square metres towards proportionate rights in the
Development Plan road area so as to avail FSI benefits in terms of
the sanctioned plan.
10. Per contra, Mr. Dhond, learned Senior Advocate, and Mr.
Akshay Patil, learned Advocate appearing for respondent Nos. 3 to
7, submitted that upon a conjoint reading of the statutory
provisions and the judicial precedents cited at the Bar, certain
settled principles emerge in relation to the concept of appurtenant
area. Firstly, according to them, appurtenant area must be such
area upon which the building is dependent for its use and
enjoyment as a building. The governing test, according to them, is
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one of functional dependence and not mere convenience or
commercial utility. In support thereof, reliance was placed upon
the decisions in Maharaj Singh vs. State of Uttar Pradesh & Others,
(1977) 1 SCC 155, and Larsen & Toubro Limited, Club House
Road, Madras vs. Trustees of Dharmamurthy Rao Bahadur
Calavala Cunnan Chetty’s Charities, (1988) 4 SCC 260. Secondly,
they submitted that where building regulations operate, the
appurtenant area would stand confined to such open space as is
required under those regulations to be kept open for enjoyment of
the building. For this proposition, reliance was placed upon State
of U.P. vs. L.J. Johnson, (1983) 4 SCC 110, Marathon Era Co
operative Housing Society Ltd. vs. Competent Authority & Others,
Writ Petition No.180 of 2018 decided on 18 April 2024, and
Property Owners Association & Others vs. State of Maharashtra &
Others, 1992 (I) Bom.C.R. 152. Thirdly, they submitted that
appurtenant area must be physically contiguous and adjoining to
the building and cannot comprise distant or separated parcels of
land. Fourthly, such area must be reserved as open space for
enjoyment of the building and not for independent commercial or
unrelated purposes. Fifthly, the area is necessarily subsidiary and
ancillary to the principal structure and cannot assume an equal or
independent character. Sixthly, by operation of Section 8 of the
Transfer of Property Act and Section 2(zn) of the RERA enactment,
appurtenant area passes as a legal incident of the building upon
conveyance and does not require separate specification. Lastly,
they submitted that what constitutes appurtenant area in a given
case is essentially a question of fact to be determined with
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reference to the applicable building regulations, sanctioned plans
and actual user. Reliance in that regard was placed upon Larsen &
Toubro Limited (supra) and Commissioner of Income Tax, A.P. vs.
Rishi Raj Jain, (2006) 13 SCC 246.
11. Learned Senior Counsel further submitted that in so far as
planning regulations are concerned, the concept of appurtenant
area cannot be construed in isolation or in abstract terms.
According to them, the same must necessarily be read in
conjunction with the building plans submitted by the developer
while seeking development permission and commencement
certificates from the planning authority. Elaborating the said
submission, learned counsel invited attention to Clause 10(3)(vi)
of the Development Control and Promotion Regulations, 2034
applicable to Greater Mumbai, which explains the contents of a
building plan. They submitted that the building plan is required,
inter alia, to indicate details of parking spaces, loading and
unloading spaces wherever required around and within the
building, access ways, appurtenant open spaces shown in dotted
lines, the distance from any existing building on the plot in figured
dimensions, together with accessory buildings. According to them,
the statutory requirement itself demonstrates the limited and
identifiable nature of appurtenant space.
12. Learned counsel further submitted that identical terminology
is found in Clause 2.2.7 of the Unified Development Control and
Promotion Regulations, which likewise mandates that building
plans shall indicate appurtenant open spaces with projections in
dotted lines. On the basis of these provisions, it was contended
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that the following categories ordinarily constitute appurtenant
area of a building. Firstly, spaces provided around the building
such as parking, loading and unloading spaces. Secondly, spaces
provided within the building precincts including parking areas,
staircases, ramps, exit ways and lift wells. Thirdly, open spaces
appurtenant to the building indicating the prescribed distance
between the said building and another building as reflected in the
sanctioned plans.
13. Learned Senior Counsel then submitted that the Unified
Development Control and Promotion Regulations classify areas
required to be kept open around the building, as also the
prescribed distance between two buildings, under Clause 6.2.2.
These are described as marginal distances and include front
margin under Clause 6.2.3(a), side or rear margin under Clause
6.2.3(b), step margin under Clause 6.2.3(c), and the distance
between two buildings under Clause 6.2.4. They further invited
attention to Clause 2(84) of the DCPR, 2034, wherein Marginal
Open Space/Distance is defined as the minimum distance
measured between the front, rear, and side building lines and the
respective plot boundaries. According to them, such definition
lends statutory support to the contention that appurtenant area is
closely linked with mandatory open margins surrounding the
building.
14. Learned counsel next submitted that appurtenant area is
fundamentally distinct from common area under the scheme of the
UDCPR and DCPR, 2034. According to them, common areas
consist of recreational and amenity spaces meant for the benefit of
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the entire layout. They submitted that Clause 27(1)(g) of the
DCPR, 2034 and Clause 3.4.7 of the UDCPR contemplate
structures such as pavilions, gymnasia, fitness centres, club-houses,
vipashyana and yoga centres, crèches, kindergartens, libraries,
swimming pools, religious structures and other facilities meant for
sports or recreational purposes as forming part of common areas.
It was further submitted that the Regulations also require
remaining open spaces to be maintained as playgrounds.
15. According to learned Senior Counsel, the essential
characteristics of appurtenant area are that it is specific to an
individual building, comprises marginal open spaces around that
building such as front, side and rear margins, is required for
compliance with building regulations, is necessary for the
building’s functional requirements including light, air, access,
ventilation and fire safety, cannot be enclosed or built upon, and is
intended to serve that particular building and its occupants.
16. In contrast, learned counsel submitted that common areas
possess altogether different attributes. They are shared by all
owners within the larger layout, consist of common recreational
and amenity spaces such as gardens, gymnasiums and club-houses,
are collectively owned by all societies or buildings forming part of
the layout, are meant for common beneficial use, are governed by
Clause 3.4.7(iv) of the UDCPR and Clause 27(1)(g)(ii) of the
DCPR, 2034, and are intended to serve the community as a whole
rather than any one individual building.
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17. Learned Counsel further submitted that the statutory scheme
itself clarifies ownership of such common areas. They relied upon
Clause 3.4.7(iv) of the UDCPR and Clause 27(1)(g)(ii)(a) of the
DCPR, 2034, which provide that ownership of common area
structures and appurtenant users shall vest, by appropriate
provision in the deed of conveyance, in all owners on account of
whose cumulative holdings the layout open space is required to be
maintained.
18. Summarising their submissions, learned Counsel contended
that the expression appurtenant area is a settled legal concept
consistently recognised across statutes and judicial decisions.
According to them, it denotes the regulatory open space
immediately surrounding a building, physically contiguous thereto,
functionally necessary for use of the building, and subordinate in
character. They submitted that such concept is wholly distinct from
common areas, recreational spaces and layout amenities which
vest collectively in all owners for common use and benefit.
19. It was further submitted on behalf of respondent No.3 that
the principles emerging from the decisions of the Supreme Court,
judgments of the High Courts, relevant statutory provisions,
planning regulations and recognised legal sources conclusively
establish that appurtenant area is of a limited, building specific
and regulation dependent nature. According to the respondents,
any broader construction of the expression would run contrary to
the settled position in law.
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20. It was further placed on record through the Architect of
respondent No.3 that as per the sanctioned plan bearing No.
MB/MNP/NR/7498/2018-19 dated 29 March 2019, the plinth
area of Building No.1 known as “Rashesh” is 1151.56 square
metres, and the appurtenant land area of the said building is
1050.00 square metres. It was stated that the layout is not one
consisting of subdivided plots and that grant of individual
conveyance in respect of the said building would violate the
provisions of the UDCPR. The Architect accordingly opined that
plinth area admeasuring 1151.56 square metres together with
appurtenant land area admeasuring 1050.00 square metres,
aggregating to 2201.56 square metres, as reflected in the approved
building plans under order No. MB/MNP/NR/7498/2018-19 dated
29 March 2019 issued by the Mira Bhayander Municipal
Corporation, ought to be conveyed in favour of Rashesh Co
operative Housing Society Ltd. in respect of Building No.1 known
as Rashesh. It was further stated that as all Survey Numbers and
Hissa Numbers stand merged and amalgamated into a single
layout, separate identification for mutation and recording the
name of the petitioner society in revenue records would have to be
undertaken accordingly.
REASONS AND ANALYSIS:
21. Having heard the learned advocates appearing for the
respective parties at considerable length, and having perused the
pleadings, documents, sanctioned plans, commencement
certificates, occupation records, correspondence exchanged
between parties, and the statutory provisions pressed into service,
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the following issues arise for determination in the present petition:
Issues for Determination:
Scope of ‘appurtenant area’: Under MOFA, building bye-laws
and the 2018 GR, what open lands are appurtenant to the
petitioner’s building and must pass in conveyance? Does it
include only the marginal setbacks or a wider open-space
and amenities share?
Proportionate share formula: In a TDR-loaded layout, should
the society’s land share be computed by plinth area alone (as
petitioner urges) or by total built-up FSI (as respondents
fear)?
Recreational Ground (RG) entitlement: Is the society entitled
to a share of the layout’s RG, and if so how much?
(i) Scope of ‘appurtenant area’
22. The present dispute is required to be examined in light of the
provisions of the Maharashtra Ownership Flats Act, 1963,
commonly known as MOFA, together with the applicable
Development Control Regulations, layout approval, open spaces,
setbacks, access, amenities and permissible construction. MOFA
protects flat purchasers against withholding of title by promoters,
whereas the Development Control Regulations determine how land
is to be used, what minimum open spaces are compulsory, what
recreational areas are to be maintained, and what portion of land
remains attached to a building for occupation. In addition to these,
reliance is also placed on the Government Resolution dated June
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2018, which has been issued for guidance in matters of deemed
conveyance and determination of land appurtenant to buildings in
layouts. Therefore, the controversy before this Court requires a
combined reading so that purchaser rights are not defeated by
technical objections by the promoters.
23. It is required to be noted that MOFA is a welfare legislation
enacted with object of controlling malpractices in sale of flats and
to secure title for persons who invest life savings in residential
premises. Before such legislation, many promoters used to
construct buildings, sell flats, collect full consideration, yet
continue to retain ownership of land and common areas for
indefinite period. Purchasers were left in occupation without
complete title. It is to remove such injustice that MOFA casts
binding obligations upon the promoter. Therefore, while
interpreting any provision under MOFA, the Court must lean in
favour of protecting legitimate rights of flat purchasers rather than
permitting methods by which conveyance is delayed.
24. Section 11(1) of MOFA requires the promoter to take all
steps for conveying the right, title and interest in the land and
building in favour of the co-operative society, company or
association of flat purchasers, and to execute conveyance within
the period prescribed by rules and in accordance with the
agreement for sale. The language used by the legislature show that
once the conditions contemplated by law are fulfilled, the
promoter cannot postpone conveyance on ground that he may
have proposed additional construction, possible redevelopment, or
internal disputes regarding layout potential. The words “right, title
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and interest in land and building” occurring in Section 11(1) are of
wide amplitude and cannot be reduced to transfer of only
superstructure standing upon land. Ownership of a building in law
includes beneficial rights necessary for its use, such as ingress,
egress, open setbacks required by regulation, utility connections,
access for repairs, safety movement, ventilation zones and such
portions of land. A building stands upon land and draws its use
from surrounding spaces as required by planning law. Hence,
conveyance under Section 11 must include such land as is
appurtenant.
25. The submission raised by promoters that conveyance remains
suspended till all future development in entire layout is exhausted
cannot be accepted. Section 11 does not say that statutory transfer
can be postponed till promoter uses every inch of land. If rights
were reserved in agreements and sanctioned by way of informed
consent, that may stand on separate footing. But in absence of
informed consent, the duty under Section 11 remains enforceable.
Otherwise, the promoter would continue as owner while
purchasers remain perpetual consumers, which is contrary to the
legislative scheme.
26. Assistance may also be taken from Section 8 of the Transfer
of Property Act, 1882, though the present matter arises under
MOFA. Section 8 recognises that unless contrary intention appears,
transfer of property passes to the transferee all legal incidents
attached thereto. In relation to a dwelling house, the land
appurtenant thereto also passes with the conveyance. One does
not transfer a house while retaining those incidents without which
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the house cannot be enjoyed. The expression “appurtenant”
ordinarily means attached to, belonging to, or necessary for
beneficial enjoyment of the main property. It does not always mean
land touching every wall. Nor does it include unlimited
surrounding land. Its meaning depends on purpose, user,
sanctioned layout, planning norms and factual necessity.
Therefore, in housing matters, appurtenant land may include
compulsory marginal open spaces, access roads, passages, fire
tender movement areas, common utility strips, parking areas if
earmarked, gardens or amenities linked with building use, and
other areas which by regulation are intended for occupants of that
building or group of buildings.
27. A promoter cannot convey only the footprint beneath
columns and staircase and retain all open areas despite those open
areas being mandatory under building rules. Such open lands are
the reason why occupation certificate could be granted. If setback,
access width, recreational reservation or ventilation distance were
necessary to sanction the building, then such spaces cannot later
be treated as inalienable right of the promoter.
28. The Development Control Regulations become relevant for
this reason. Planning regulations prescribe minimum front, side
and rear margins, distance between buildings, internal roads,
amenity spaces, Recreational Ground reservations, parking norms,
drainage corridors and other planning controls. They define how
the building can exist. Therefore, while deciding extent of
conveyance, the Court must examine sanctioned plans and
applicable regulations. Land which planning law links to the use of
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the building may constitute part of the appurtenant entitlement,
subject to layout and rights of other buildings.
29. The June 2018 Government Resolution has also been placed
before the Court to indicate guidance for determining unilateral
conveyance claims in layouts comprising multiple buildings.
Though such Government Resolution cannot override statute, it
can assist in implementation where ambiguity exists. If the
Resolution recognises proportionate land sharing, common
amenities, or method for identifying appurtenant areas, such
guidance may be relevant so long as it remains consistent with
MOFA and rules and planning law.
30. In the present case the issue is what land component, open
spaces, and common shares must accompany such conveyance. A
conveyance of building plinth without usable rights would defeat
purpose.
31. Thus, on combined reading of MOFA Section 11(1), Section
8 of the Transfer of Property Act, and the Development Control
Regulations, this Court is of opinion that where a building is
conveyed to a society of flat purchasers, the transfer carries with it
those surrounding lands and open spaces which are appurtenant,
necessary or incidental to the beneficial enjoyment of that
building. Any contrary claim by promoter must be established from
sanctioned reservations.
32. Learned Advocate appearing for respondent Nos.3 to 7 have
made submissions on the concept of appurtenant area and have
urged that the controversy must be resolved on principles
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emerging from statute, planning regulations and judicial
precedents. According to them, the petitioner seeks to enlarge the
meaning of appurtenant land beyond what law permits. It is
therefore necessary to carefully examine each submission.
33. The first submission concerns dependence. Learned counsel
contend that appurtenant area means only such land upon which
the building depends for its use as a building. In this context, they
rightly rely upon the principle that the test is functional
dependence. There is substance in the proposition that every open
land around a building does not become appurtenant. A society
may prefer larger grounds, wider spaces or more development
rights. The decision in Maharaj Singh has been cited to show that
lands used for fairs, bazaars or independent activities do not
become appurtenant merely because they are near the main
structure. If a land has separate standing disconnected from
enjoyment of the building, it may not be annexed by mere
proximity. Therefore, where an open area is independently
reserved for larger layout use based on informed consent, the
claim of one building over the same requires deeper examination.
Reliance on Larsen & Toubro Limited is also relevant insofar as the
Supreme Court recognised that appurtenance depends on facts and
actual use. The case indicates that a yard used for ingress,
circulation, parking or service may well be appurtenant because
the building functionally depends on it. Thus, respondent’s
submission on dependence cannot be read to mean the four walls
and staircase. Functional dependence may include many open
components necessary for occupation.
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34. The second submission is in relation to areas governed by
building regulations, appurtenant area is limited to what those
regulations require to be kept open for the building’s enjoyment.
Planning law prescribes front margins, side setbacks, rear spaces,
access width, fire tender movement areas, parking norms and
spacing between buildings. These are indicators of land attached
to the building. However, the Court is unable to accept absolute
proposition that only minimum statutory setback can be
appurtenant area. Building regulations prescribe minimum area. A
sanctioned plan may specify additional circulation space, parking
area, utility areas or access area for one building. Such user may
also acquire appurtenant character if shown on plan and intended
for building use. Learned counsel relies upon L.J. Johnson,
Marathon Era Co operative Housing Society Ltd., and Property
Owners Association. These authorities support the principle that
appurtenant claims must remain connected to sanctioned norms.
35. The third submission concerns contiguity. According to
respondents, appurtenant land must be physically adjoining and
contiguous to the building, and cannot consist of distant parcels. In
general, contiguity is a relevant factor. Land immediately
surrounding the structure bears appurtenant character than a
remote parcel in another zone. This Court accepts that remoteness
weakens the claim. Even then, contiguity cannot be treated as a
mechanical rule. A driveway leading from gate to building
entrance, a parking area slightly away from plinth line, a
transformer space, water tank zone may not touch every side of
the building, yet may remain connected with its use. Hence,
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contiguity must be understood in planning sense.
36. The fourth submission is in relation to limited purpose. It is
contended that the land must be kept as open space for enjoyment
of the building and not for commercial purpose. This proposition is
correct. If land is reserved for separate shops, another tower or
unrelated activity, one building cannot claim it as appurtenant
merely because it lies in same plot. But “enjoyment of the
building” includes access, parking where sanctioned, children
movement, ventilation, emergency services, utility maintenance,
common entry and lawful amenities attached to occupation.
37. The fifth submission relates to subsidiary nature.
Respondents contend that appurtenant land must remain ancillary
to the main building and cannot be independent. This proposition
also correct. A small building cannot claim major area under guise
of appurtenance.
38. But one must remember that in layouts, open spaces
required for safety, circulation, and recreation may exceed plinth
area. Their measurement alone does not take away ancillary
character. A tower may occupy small plinth but require more open
margins and fire access under regulations. Therefore, size
comparison by itself is not conclusive.
39. Learned counsel then relies upon transfer under Section 8 of
the Transfer of Property Act and provisions of the real estate
enactment, submitting that appurtenant area passes as incident of
the building even without recital. This proposition supports
transfer of appropriate appurtenant land. But it weakens the
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respondents to the extent they seek to confine conveyance only to
plinth area. If appurtenant rights pass by operation of law, then
once such rights are identified, they stand transferred along with
conveyance.
40. The next submission is that what constitutes appurtenant
area is ultimately a question of fact to be determined from
regulations, approved plans and actual use. This Court fully
agrees. No formula can decide the present petition. The sanctioned
layout, building plans, occupation certificate, physical situation,
parking arrangements, access pattern, RG reservation and inter se
location of buildings must all be examined.
41. Learned counsel further submits that planning regulations
must be understood with the building plans submitted for
commencement certificates. This submission deserves acceptance.
If a sanctioned plan shows certain spaces for Building, common
roads for all, and RG for layout users, such marked use is material.
Reliance has been placed upon clauses of DCPR and UDCPR
requiring building plans to show parking spaces, loading and
unloading spaces, access ways and appurtenant open spaces in
dotted lines, together with distance from existing buildings. This
drafting indicates that planning law itself recognises appurtenant
open spaces as components on the plan. Thus respondent’s
contention that appurtenant area is a vague concept cannot stand.
42. The further submission that such spaces may include areas
around the building, parking spaces, internal movement areas,
staircases, ramps, exit ways and like facilities is correct. Many of
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these are necessary for use of the building. If they are designated
for the building, they may form part of entitlement subject to
common use.
43. Learned counsel refers to clauses regarding front margin,
side margin, rear margin, step margin and distance between
buildings. These marginal distances are important. They are
necessary for light, air, privacy, fire safety. Such spaces are attached
to the building. Therefore, in determining petitioner’s entitlement,
such areas cannot be ignored. Attention is also invited to definition
of Marginal Open Space as minimum distance between building
line and plot boundaries. This supports that open land around
structures is a planning factor. Once a building gets sanction based
on such open space, the promoter cannot treat such open margin
area as separate from building.
44. Respondents distinguish appurtenant area from common
area. Common areas such as layout gardens, club-houses,
swimming pools, playgrounds, community halls and common
recreational spaces are different from setbacks around one
building. They are provided for common enjoyment and vest
proportionately in all owners.
45. Clauses cited from DCPR and UDCPR regarding pavilions,
gymnasia, fitness centres, club-houses, crèches, libraries, pools and
playgrounds indicate a planning intention. Such facilities cannot
be used exclusively by one society unless the sanctioned plan
specifically says so. Therefore, the petitioner’s claim in such areas
would be proportionate undivided share.
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46. Reliance on clauses vesting ownership of common area
structures in all owners collectively is important. Where
regulations provide that layout open space related structures vest
in all owners, the promoter cannot retain such common amenities
as a owner. At the same time, one society alone cannot own it
exclusively.
47. The petitioner has placed reliance upon architect certificate
and has claimed entitlement to conveyance comprising 3987.16
square metres towards plinth or ground coverage area, together
with 703.62 square metres towards proportionate share in
Recreational Ground. These figures are required to be tested
against the principles of MOFA, the Government Resolution dated
22 June 2018, sanctioned plans, Development Control Regulations
and the law relating to appurtenant rights already discussed
hereinabove.
(ii) Proportionate share formula:
48. I have carefully considered the two sets of architect
certificates placed on record, the earlier remand directions issued
by this Court in Writ Petition No.12257 of 2024, the Government
Resolution dated 22 June 2018, and the rival submissions
advanced by both sides. The matter has not come before this Court
for first time. It had earlier travelled to this Court and was
remanded back for fresh consideration on a specific deficiency
noticed in the previous adjudication. Therefore, the present
exercise is a determination on the precise question left undecided
earlier.
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49. The remand was made for a limited reason. This Court had
already noticed that where development is carried out by utilising
TDR, Guideline Clause (iv)(2) of the Government Resolution dated
22 June 2018 specifically requires that conveyance is to be
considered in respect of plinth area and appurtenant area. These
two expressions are used separately. Hence, they must be
separately understood and separately measured. If one figure is
given in composite manner, the requirement of the guideline
remains incomplete. In the earlier proceedings, the certificate
relied upon by the petitioner dealt with proportionate land
entitlement, share in Recreational Ground, and share in other
layout components. However, it did not demarcate the appurtenant
area surrounding the petitioner’s building as a separate unit. In
absence of such demarcation, the Competent Authority could not
correctly apply Clause (iv)(2) of the Government Resolution.
Therefore, fresh adjudication became necessary.
50. The certificate produced on behalf of the petitioner adopts
what may be called a proportionate rights method. It compares
total built up area of all structures in the larger layout and then
distribute shares in net plot area, RG area and road area
proportionately. Such method may be useful in understanding
layout participation, but it does not by itself answer the question
as to plinth area and appurtenant land of the petitioner building.
51. In that certificate, the petitioner building known as Rashesh
CHSL is shown with built up area of 6888.60 square metres out of
total built up area of 34459.18 square metres. On that basis, the
petitioner is assigned 19.99 percent share. Thereafter, share in net
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plot area is shown as 3987.16 square metres. Similarly,
proportionate RG share is shown as 703.62 square metres. Thus,
the petitioner’s certificates proceed on ratio and allocation method.
52. There is nothing inherently illegal in such proportional
exercise. In a multi building layout, common areas are often
distributed by some rational percentage formula. However, the
difficulty lies elsewhere. The formula used in the petitioner’s
certificates does not separate what is actual building footprint and
what is appurtenant surrounding land. It aggregates rights by
percentage rather than by physical classification.
53. This is precisely why the earlier remand order became
necessary. The Government Resolution in TDR matters does not
merely speak of proportionate rights in abstract. It uses the specific
words plinth area and appurtenant area. Therefore, both
components must visibly appear. If the certificate merely states a
total share in net plot, then the adjudicating authority cannot
know how much of that is building footprint and how much is
surrounding appurtenant land.
54. The certificate produced on behalf of the respondents and
prepared after remand therefore becomes material. For the first
time, the petitioner building is classified into two heads. According
to this certificate, based on sanctioned plan dated 29 March 2019,
the plinth area of Building No.1 known as Rashesh is 1151.56
square metres and the appurtenant land area is 1050.00 square
metres, making total of 2201.56 square metres. This statement
repeated in the certificate and once again in tabular form. The
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table records survey wise breakup and then totals the plinth
component and appurtenant component separately. Such
recording shows technical determination. Thus, the respondents’
architect has made calculation regarding plinth and appurtenant
components of the petitioner building.
55. This Court also finds no immediate reason to discard the said
figures because the certificates specifically state that they are
drawn from sanctioned plan bearing No. MB/MNP/NR/7498/
2018-19 dated 29 March 2019. Where a figure is linked to
sanctioned municipal plans, it receives greater reliability than
unsupported estimates.
56. The petitioner has strongly argued for plinth area of 3987.16
square metres. However, on close reading of the petitioner’s
certificate, that figure is not described as actual footprint of the
building. It is expressly derived as proportionate share in net plot
area based upon built up ratio, namely:
6888.60/34459.18×19945.19=3987.16. Therefore, the figure of
3987.16 square metres is a land share allocation formula. It is not
a plinth measurement. It represents proportionate entitlement in
net plot area, not the covered ground area of the petitioner
structure.
57. In property terms and planning law, plinth area ordinarily
means the area covered by the building at ground level, namely its
sanctioned footprint. It does not mean percentage share in the
entire larger plot. If these two concepts are mixed, confusion
follows. Hence, the figure of 3987.16 square metres cannot be
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accepted as plinth area. By contrast, the Respondent’s certificate
uses clear language. It specifically states that “Plinth Area of the
said Building No.1 known as Rashesh is 1151.56 sq.mts.” This
wording leaves little room for doubt. It identifies the plinth itself.
Hence, for the purpose of Guideline Clause (iv)(2) of the
Government Resolution dated 22 June 2018, the plinth area must
be taken as 1151.56 square metres.
58. The same certificate separately states that the appurtenant
land area is 1050.00 square metres. This directly satisfies the
remand purpose because the missing component in the earlier
proceedings was identification of appurtenant area. The
respondents themselves have now supplied that figure through
their architect. The petitioner contends that additional side
margins and surrounding lands should enlarge the appurtenant
entitlement beyond 1050 square metres. Such submission cannot
be brushed aside lightly, because appurtenant area may in some
cases exceed one narrow strip. However, judicial determination
must proceed on evidence and not on possibility. No later technical
certificate has been produced after remand by the petitioner
showing separate measured appurtenant area with setback lines,
side margins, rear margins, and site demarcation contradicting the
sanctioned-plan-based respondent certificate. The earlier petitioner
certificate only gave proportionate land share, not a appurtenant
area. In such situation, where remand specifically sought
determination of plinth and appurtenant area, and where the only
certificate classifying both heads from sanctioned plans is the
respondents’ certificate, this Court is justified in accepting those
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figures unless disproved by technical material. No such contrary
material appears on record.
59. Accordingly, this Court determines the exact plinth area of
the petitioner society building Rashesh CHSL as P A=1151.56sq.m.
60. The exact appurtenant area attached to the said building is
determined as: AA=1050.00 sq.m.
61. Therefore, the total exclusive conveyable area under Clause
(iv)(2), being plinth plus appurtenant area, works out to:
PA+AA=1151.56+1050.00=2201.56 sq.m.
(iii) Recreational Ground (RG) entitlement
62. The next issue concerns the common Recreational Ground
area. On this aspect, the petitioner’s architect certificate separately
computes total RG area of 3519.74 square metres and then
allocates the petitioner’s proportionate share as 703.62 square
metres. This figure appears derived from the same 19.99 percent
ratio adopted in that certificate. The respondents have not placed
any contrary RG computation before this Court. They have
disputed larger claims generally, but have not shown any alternate
measurement of total RG or alternate ratio applicable to the
petitioner. Since RG is not exclusive appurtenant land but common
amenity land, the petitioner cannot receive exclusive possession of
703.62 square metres. Recreational Ground in a layout is
ordinarily for common beneficial use of all entitled occupants.
However, it follows that the petitioner cannot be denied beneficial
participation in the RG. Once the petitioner forms part of the
sanctioned layout and its purchasers acquired flats in that project,
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the society becomes entitled to undivided share in the common RG
proportionate to its participation.
63. Thus, the exact common RG share of the petitioner is
determined as: RG=703.62 sq.m. (undivided proportionate share)
64. Therefore, the final determination in favour of the petitioner
society is as follows:
a. Exact Plinth Area: 1151.56 square metres;
b. Exact Appurtenant Area: 1050.00 square metres;
c. Total Exclusive Conveyance Area: 2201.56 square
metres;
d. Common RG Share: 703.62 square metres as undivided
proportionate right.
65. If total entitlement including common RG share is expressed,
though RG remains common and undivided, it would be:
2201.56+703.62=2905.18 sq.m.
66. Accordingly, the Competent Authority shall issue deemed
conveyance certificate recording that the petitioner society receives
exclusive conveyance of 2201.56 square metres consisting of plinth
and appurtenant area, together with undivided proportionate
common right in Recreational Ground admeasuring 703.62 square
metres.
67. In view of the foregoing discussion and reasons recorded
hereinabove, the following order is passed:
(i) The writ petition is partly allowed;
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(ii) The judgment and order dated 8 July 2025 passed by
respondent No.2 in Application No.379 of 2023 is quashed
and set aside;
(iii) It is declared that the petitioner society is entitled to
deemed conveyance in accordance with Section 11 of the
Maharashtra Ownership Flats Act, 1963 read with
Government Resolution dated 22 June 2018;
(iv) It is further declared that for the purpose of deemed
conveyance, the entitlement of the petitioner society shall
stand determined as under:
a. Exact Plinth Area: 1151.56 square metres;
b. Exact Appurtenant Area: 1050.00 square metres;
c. Total Exclusive Conveyable Area comprising plinth and
appurtenant area: 2201.56 square metres;
d. Undivided proportionate right in common Recreational
Ground area: 703.62 square metres;
(v) It is clarified that the Recreational Ground area
mentioned in clause (iv)(d) shall not confer exclusive
possession over any demarcated portion thereof, but shall
constitute proportionate undivided beneficial right in the
common amenity area, subject to rights of other entitled
occupants in the sanctioned layout;
(vi) Respondent No.2 shall issue fresh certificate of deemed
conveyance and execute all consequential orders and
directions in favour of the petitioner society by incorporating
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the above areas, within a period of eight weeks from the date
of receipt of authenticated copy of this order;
(vii) While issuing the fresh certificate, respondent No.2
shall ensure that necessary description of survey numbers,
hissa numbers, layout particulars and municipal plan
references are incorporated;
(viii) Respondent Nos.3 to 7 shall extend full cooperation for
execution and registration of the conveyance documents and
shall furnish all title documents, sanctioned plans and
revenue particulars required by respondent No.2 within two
weeks;
(ix) In the event of failure of respondent Nos.3 to 7 to
cooperate, respondent No.2 shall proceed in accordance with
law and complete the deemed conveyance process without
awaiting their consent;
(xi) Rule is made absolute in the above terms;
(xii) There shall be no order as to costs.
(AMIT BORKAR, J.)
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