Sanjay Enclave Premises Co Op Soc Ltd vs Competent Authority District Deputy Reg Co Op Soc And Ors
- Court
- Bombay High Court
CNR No : HCBM010173902021
Neeta Sawant WP-4710 OF 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4710 OF 2022
Sanjar Enclave Premises Co-operative
...Petitioner
Society Limited
: Versus :
1. Competent Authority, District
Deputy Registrar, Co-operative
Societies, Mumbai City-4
2. State of Maharashtra
3. Siraj Mohammed Haji Adam
4. Ashraf Mohammed Haji Adam
5. Abdul Sattar Haji Adam
6. Salim Abdul Latif Halai
7. Arif Abdul Latif Halai ....Respondents
Mr. Tushad Kakalia i/b. Ms. Sukeshi Bhandari, for the Petitioner.
Mr. Mayur Khandeparkar with Mr. Sanjiv R. Singh, Mr. Shivam P. Joshi,
Mr. Ankit J. Mishra i/b. Mr. Ritesh A. Singh, for Respondent Nos.3 to 7.
Mr. P.V. Nelson-Rajan , AGP for State-Respondent Nos.1 and 2.
CORAM: SANDEEP V. MARNE, J.
JUDGMENT RESD. ON : 26 OCTOBER 2026.
JUDGMENT PRON. ON : 3 NOVEMBER 2026.
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JUDGMENT:
1) Petitioner-society has assailed the order dated 31 March
2021 passed by the District Deputy Registrar, Co-operative Societies,
Mumbai City-4 and Competent Authority (Competent Authority)
rejecting its application for deemed conveyance.
2) Petitioner is a co-operative housing society formed by flat
purchasers of Sanjar Enclave Premises CHSL (Sanjar Enclave) building
constructed on the land bearing Survey Nos.32, 32A and 32B
corresponding CTS Nos.428A, 428A/1 to 20 and 428B of Village-Malad
(North), Taluka-Borivali, Mumbai Suburban District. Petitioner-society
has 46 members.
3) By Conveyance Deed dated 22 December 1959, Mr. Abdul
Latif Haji Adam and Mr. Mohd. Adam purchased the land admeasuring
4163.70 sq.m bearing Survey Nos.32, 32A and 32B corresponding CTS
Nos.428A, 428A/1 to 20 and 428B of Village-Malad (North), Taluka-
Borivali, Mumbai Suburban District. Municipal Corporation of Greater
Mumbai (MCGM) approved plans for construction of a structure named
as ‘Madina Manzil’ on 27 June 1963. Accordingly, the structure Madina
Manzil comprising of ground plus 3 upper floors was constructed having
BUA of about 1780.02 sq.mts. The units in the Madina Manzil building
were let out to the tenants by the land owners. On 4 August 1984, the
owners granted development rights for construction of another structure
with BUA of 957.25 sq. mts. Accordingly, a building named ‘Akshar Kunj’
was constructed in the year 1986 in which, 10 existing tenants on the
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land were rehabilitated and the balance flats were sold. The unit
occupiers of the building have formed Akshar Kunj CHSL.
4) In the year 2003, the land owners proposed construction of a
third structure in the layout and accordingly plans were submitted to
MCGM for construction of Building-A ( Sanjar Enclave ). The layout was
approved by the MCGM on 7 August 2003 for construction of Building-A
and by indicating presence of Building-B ( Akshar Kunj CHSL ) and
Building-C ( Madina Manzil ). The IOD and Commencement Certificate for
Building-A known as ‘Sanjar Enclave’ were issued on 10 October 2003
and 15 April 2004 respectively. Agreements under Section 4 of
Maharashtra Ownership Flats (Regulation of the promotion of
construction, sale, management and transfer) Act, 1963 (MOFA) were
executed in favour of the unit purchasers of Sanjar Enclave building and
units therein were sold. After completion of construction of the building,
Respondent Nos.3 to 7 submitted a proposal to MCGM for redevelopment
of Madina Manzil building. On 20 December 2013, MCGM approved the
plans and issued IOD for reconstruction of Madina Manzil building
comprising of BUA of 2692.53 sq.mts. The flat purchasers of Sanjar
Enclave building executed Affidavit-cum-No objection on 22 August
2014 recognising the rights of the land owners for construction of
additional structures by utilizing the development potential in the land.
They also agreed that conveyance would be executed only after
development of the whole layout. After execution of such Affidavit-cum-
No objection, Petitioner-society was registered on 15 April 2015 by
imposing various conditions forming part of Affidavit-cum-No objection.
In the meantime, Madina Manzil became dilapidated and was
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demolished in the year 2019. The MCGM issued a fresh IOD on 13
February 2019 for the reconstruction of Madina Manzil building. It also
issued the Plinth CC on 16 December 2019 and a further CC on 22 July
2020.
5) In the above background, Petitioners filed Application No.
115 of 2020 for unilateral deemed conveyance of the entire land
admeasuring 4163.70 sq.mts. During pendency of application for deemed
conveyance, Petitioner filed L.C. Suit No. 1570 of 2022 in the City Civil
Court against Respondent Nos.3 to 7 and the MCGM seeking declaration
that Affidavit-cum-No objection dated 22 August 2014 is illegal and not
binding as well as challenging the IOD dated 13 February 2019 and
sought restraint against construction of building in place of the
structure-Madina Manzil.
6) Petitioner's application for deemed conveyance was resisted
by Respondent Nos.3 to 7 by filing their reply. By order dated 31 March
2021, the Competent Authority has rejected Petitioner’s application for
deemed conveyance. Aggrieved by the order dated 31 March 2021, the
Petitioner has filed the present petition.
7)
Mr. Kakalia, the learned counsel appearing for the Petitioner
has submitted that the Competent Authority has erroneously rejected
Petitioner’s application for deemed conveyance. He submits that the
Petitioner is entitled to conveyance of land proportionate to the BUA
utilized in construction of its building. He submits that following the
ratio of judgment of this Court in
Satellite Garden-I CHSL Versus State
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1
of Maharashtra , land sharing in required to be frozen on the basis of
initial plan dated 7 August 2003. He submits that reliance by Respondent
Nos.3 to 7 on Affidavit-cum-No objection dated 22 August 2014 is totally
baseless. That the said Affidavit-cum-No objection cannot be treated as
a consent within the meaning of Section 7 of MOFA. That Affidavit-cum-
No objection is nothing but a blanket consent since it does not disclose
the nature of additional construction. That there is nothing on record to
indicate that the IOD or revised plans were ever disclosed to the
members of the Petitioner-society while executing the Affidavit-cum-No
objection. He relies on judgment of this Court in Rose Villa Co-operative
2
Housing Society Limited v/s. District Deputy Registrar and others , in
support of his contention that Competent Authority can decide the issue
of existence or otherwise of consent. That the Affidavit-cum-No
objection was secured from the flat purchasers for permitting them to
form society. That pendency of suit filed after the deemed conveyance
application does not foreclose the Competent Authority from conducting
limited inquiry of existence or otherwise of the consent. Mr. Kakalia
therefore submits that this Court may adjudicate upon the issue of the
existence of consent and, accordingly, uphold the Petitioner's right to
conveyance of a proportionate share in the land. That structures
subsequently constructed by revision in the original plan cannot affect
the crystallised share of the Petitioner in the layout land. That
Respondent Nos.3 to 7 are proposing to put up additional construction in
the layout by redeveloping the building of Akshar Kunj Society. He
therefore submits that it is necessary to notionally divide the land by
1
WP/1128/2026 decided on 16.9.2026
2 WP/17527 OF 2024 6.10.2026
decided on
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conveying the proportionate land in favour of the Petitioner-society with
a view to ensure that the land owners do not utilise additional potential
in the layout land to their advantage.
8) Mr. Khandeparkar the learned counsel appearing for
Respondent Nos.3 to 7 opposes the petition submitting that the
Competent Authority has rightly rejected Petitioner’s application for
deemed conveyance as premature. That members of the Petitioner-
society have specifically agreed for postponement of conveyance on
completion of layout development. That therefore the period specified in
Rule 9 of MOFA Rules is inapplicable in the facts and circumstances of
the present case as parties have contractually agreed for conveyance of
layout land only after completion of the layout development. He submits
that the petition is bad for non-joinder of parties as other society in the
layout viz. Akshar Kunj CHSL has not been impleaded as a party
respondent. He relies on judgment of this Court in Keyuri Constructions.
3
Pvt. Ltd. versus. State of Maharashtra and others , in support of his
contention that it is mandatory to implead all the societies in a deemed
conveyance application.
9) Mr. Khandeparkar further submits that, while the Petitioner
accuses Respondent Nos. 3 to 7 of utilising TDR/incentive FSI for the
construction of other buildings in the layout, the Petitioner conveniently
ignores the fact that TDR as well as incentive FSI has also been utilised
in the construction of Petitioner’s own building. He submits that
Petitioner-society has expressly consented for further development in
3 WP 13405 2024 decided on 19.12.2024
/ /
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the layout land by execution of Affidavit-cum-No objection. That
agreement expressed in Affidavit-cum-No objection is also reflected in
the Registration Certificate of the Petitioner dated 15 April 2015. That
the case does not involve execution of blanket consents. That these are
individual consents executed by the flat purchasers after securing
possession of their respective flats. That the case does not involve
securing of consent letters by a developer as a condition precedent for
handing over possession of the flats. That flat purchasers of Petitioner-
society are all educated persons and have consciously executed Affidavit-
cum-No objection. That in any case, the issue of validity of Affidavit-
cum-No objection is pending before the City Civil Court in the suit filed
by the Petitioner. That Petitioner-society has voluntarily segregated the
issue of validity of the consent/their deemed conveyance application by
incorporating the same in the suit. That a society cannot now turn
around and contend that the same issue be decided in deemed
conveyance proceedings. He submits that the Petitioner-society has been
unsuccessful in securing any injunction in the pending suit and its
prayer for temporary injunction has been rejected upto this Court. That
construction of new building in place of Madina Manzil building is long
since complete and OC for the same is issued. He submits that in
Satellite Garden-I CHSL this Court has specifically held that the
Competent Authority cannot go into the issue of validity or otherwise of
consents. That the judgment of this Court in Rose Villa CHSL has no
application to the facts of the present case as the case involved a
situation where plans were not approved at the time of execution of
consents. Here consents have been executed well after sanction of
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revised plans by the MCGM. Mr. Khandeparkar prays for dismissal of the
petition.
10)
Rival contentions urged on behalf of the parties now falls for
my consideration.
11) Petitioner-society is aggrieved by rejection of its application
for deemed conveyance by the Competent Authority. While rejecting
Petitioner’s application for deemed conveyance, the Competent
Authority has concluded in paragraph 15 of its order as under:
15. In view of all this fact, I am of the opinion that the construction
thereon is on the basis of FSI and TDR obtained on the area of the
entire land/layout and therefore a portions of the same cannot be
alienated from the calculation of the total FSI which is based on the
area of the entire land of the layout. Therefore, granting deemed/
unilateral conveyance to the applicant society will cause unequal
distribution of the FSI used in the construction of the existing buildings
of applicant society and other building on the same layout and also
affect the legitimate rights of the opp. no. 1 to 5 to consume the balance
FSI/TDR and also affect the right of tenants in the building Madina
Manzil. Hence it is only fair to grant the conveyance to all the buildings
after completion of the construction of the entire layout.
12)
Thus, the main reason why the Competent Authority has
rejected Petitioner’s application for deemed conveyance is the possible
adverse effects on the rights of tenants of building-Madina Manzil. As
observed above, the first structure to be constructed in the layout is
Madina Manzil which was ground plus 3 upper floors tenanted building
with BUA of 2129.21 sq.yards ( 1780.02 sq.mts ). Plans for construction of
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Madina Manzil building were approved by MCGM on 27 June 1963. There
were apparently 30 tenants in the building Madina Manzil.
13) The second structure to be constructed in the layout,
Akshar Kunj building for which plans were approved by MCGM on 23
December 1986. As per the plan dated 23 December 1986, the total BUA
of 3607.97 sq. mts was sanctioned by MCGM. It appears that there was
road set back area admeasuring 460.70 sq. mts which resulted in
reduction of gross plot area of 4163.70 sq.mts to net plot area of 3607.97
sq.mts. While sanctioning the plan dated 23 December 1986, MCGM
deducted BUA of Madina Manzil of 1780.02 sq.mts. Similarly, BUA of
540.33 sq.mts of small structures such as store room, public room and
old bungalow was also deducted. BUA of 330.37 sq.mts was reserved for
proposed building on the west side and in the plan, BUA of 957.25 sq.mts
was allotted for Akshar Kunj building that came to be constructed with
BUA of 957.25 sq.mts.
14) In the year 2003, Respondent Nos.3 to 7 undertook
construction of third structure in the layout, which is the building of
Petitioner-society named ‘Sanjar Enclave’. On 7 August 2003, MCGM
sanctioned the layout plan indicating the existing structures-Madina
Manzil and Akshar Kunj as well as sanctioning the third structure-Sanjar
Enclave. The OC plan for the Sanjar Enclave building, comprising of
parking, ground floor, stilt, 15% R.G. on the first-floor podium, and seven
upper floors, indicates that the total BUA utilised therein is 4,113.00 sq.
m., comprising a base/inherent BUA of 870.70 sq. m. and TDR/incentive
FSI of 1,062.30 sq. m. plus 2,180.00 sq. m.. It appears that a BUA of
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4,109.64 sq. m. has been utilised for the construction of the Petitioner-
Society’s building.
15) Petitioner-society initially claimed conveyance of the entire
plot area admeasuring 4163.70 sq. mts. in its application for deemed
conveyance. This prayer of the Petitioner-society was grossly erroneous
as there are other structures in the layout land, who are also entitled to
share the layout land. It also appears that in its application, Petitioner
did not even disclose presence of Madina Manzil and Akshar Kunj
buildings. The Petitioner also failed to implead Akshar Kunj CHSL as a
party Respondent to its application, thereby rendering the application
for deemed conveyance inherently defective. It is a well-settled principle
that where an organisation of flat purchasers in respect of one building
in a layout seeks conveyance of its proportionate share in the land, it is
necessary to implead the other organisations formed in respect of the
remaining buildings in the layout as parties to the proceedings. However,
since the Petitioner sought conveyance of the entire layout land while
suppressing the existence of Akshar Kunj CHSL in the said layout, the
Petitioner apparently did not even deem it necessary to implead Akshar
Kunj CHSL as a party Respondent to its application. On this ground
alone, Petitioners application deserved dismissal.
16)
Petitioner is not entitled to conveyance of the entire layout
land. This position is now accepted by the Petitioner since Mr. Kakalia
has pressed for conveyance of proportionate share in the layout land in
favour of the Petitioner-society. Thus, there appears to be a significant
shift in the approach of the Petitioner, which is now seeking conveyance
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of only proportionate share in the layout land and not the whole of the
land. However, since the Petitioner is now seeking conveyance of its
proportionate share in the layout land, it was imperative that Akshar
Kunj CHSL, which is also entitled to conveyance of a portion of the land,
was impleaded as a party to the deemed conveyance application. It is
also imperative that Akshar Kunj CHSL is impleaded in the present
Petition. In the absence of Akshar Kunj CHSL, the present Petition is
defective and liable to be dismissed on this ground.
17)
Momentarily leaving aside the issue of non-impleadment of
Akshar Kunj CHSL, I proceed to consider Mr. Kakalia’s submission that
Petitioner is entitled to conveyance of land in proportion to the BUA
utilized in construction of its building, which apparently is 4109.64
sq.mts. He has relied on judgment of this Court in
Satellite Garden-I
CHSL in support of his contention that the plans subsequently revised in
the year 2013 cannot result in reduction of Petitioner's share in the land
on account of application of principle of crystallization/freezing
enunciated by this Court in Satellite Garden-I CHSL.
18) No doubt, this Court has recognized the principle of land
freezing/crystallization upon formation of first society in the layout and
for distribution of layout land in accordance with BUA sanctioned for
each building in the layout as per the first sanctioned plan. This Court
has discussed the principle of freezing/crystallization of land
entitlement in paragraphs 165 to 173 of the judgment in Satellite
Garden-I CHSL , which read thus:
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165 . Having taken note of the complexities in proportionate land
division in layout developments where plans are modified successively
for the purpose of availing the benefit of higher FSI/BUA, it is now time
to find a best possible answer to the conundrum. In my view, the answer
to these complications created by the developers on account of revision
of layout plans lies in combined reading of provisions of MOFA and
MOF Rules, and a suggestion in this regard has also come from the
State Government.
166 . MOFA imposes twin duties on the developer once he undertakes
construction of a building comprising of flats. Developer’s first
obligation is under Section 10 of the MOFA, under which he must form
a cooperative society or a company within the prescribed period of sale
of minimum number of flats required for formation of society/company.
The period prescribed for formation of the society under Rule 8 of the
MOF Rules is ‘four months’. Once the promoter discharges this
obligation, the second obligation immediately kicks in under Section
11(1) of the MOFA. Developer then needs to convey in favour of the
society/company his right, title and interest in the land and building
within the prescribed period. Prescribed period here is again ‘four
months’ from the date of formation of the society/company as provided
under Rule 9 of MOF Rules. The combined effect of Sections 10 and 11
of the MOFA and Rules 8 and 9 of MOF Rules is such that the promoter
cannot delay conveyance and the same must be done within the period
prescribed.
167. If this concept of twin obligations on a promoter/developer,
discussed in the preceding paragraph, is borne in mind and followed in
each case, there may not be much difficulty even in a case where
developer commits the mischief of getting the plans revised midway for
availing benefit of higher FSI/BUA. To illustrate, when development of a
plot admeasuring 10,000 sq.m. is undertaken for construction of two
buildings each of 5,000 sq.m. and construction of building No.1 is
complete and if the required number of flats therein are sold, there is a
statutory obligation to form a cooperative society within four months.
Accordingly, the society is formed, say on 1 January 2005. Within four
months thereafter, the next statutory obligation kicks in to convey the
title in the land in favour of the society i.e. by 1 May 2005. Thus, the
right of the first building/society to secure its proportionate share in
the land crystallises on 1 May 2005. Its land entitlement gets ‘frozen’. In
this illustration, since Building No. 1 has utilized half of the BUA
sanctioned, it must get conveyance of 50% of the layout land. Since the
first building/society is entitled to secure land admeasuring 5,000 sq.m.
as on 1 May 2005, any delay on the part of developer in conveying the
land would not defeat the entitlement to secure conveyance of the
frozen portion of land of the first society/building.
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168. As observed above, the concept of divestment of title of the
promoter has already taken place qua land admeasuring 5,000 sq.m. for
Building No.1 in the above illustration. What is postponed is the latter
act of vesting of title in the society. In such a scenario, the title qua the
land admeasuring 5000 sq.m. has gone away from the developer but is
yet to fall in the pockets of the society. It is in the state of limbo
temporarily. In such a case, even if developer gets the plan revised
taking benefit of his mischief in not conveying the land in favour of the
Society, the same would have no effect on the right of the first
building/society to secure conveyance of land admeasuring 5000 sq.m.
As observed above, the planning authorities unfortunately take into
consideration the area of the entire plot while sanctioning the revised
permission since the name of the original owner continues to figure in
the record of rights. If in this scenario, the promoter was to fulfil his
statutory obligation and convey land admeasuring 5000 sq.m. to the
society of Building No.1, the name of that society would get mutated in
the revenue records, thereby restricting the right of the promoter to
construct Building No.2 only qua the balance land admeasuring 5000
sq.m. However, as observed above, the developer takes the benefit of his
own wrong and misuses the facility available with the planning
authority and gets the additional BUA sanctioned in respect of the
whole plot admeasuring 10000 sq.m. either due to change in FSI regime,
sanction for mixed user, permissibility to load TDR, etc. Therefore, even
if the planning authority sanctions higher FSI for Building No.2 and the
second building is constructed with BUA of 15000 sq.m., the
proportionate land division can never be in proportion to the BUA of
5000 sq.m. of Building No.1 and 15000 sq.m. to Building No.2. If the
sub-division of land in proportion to ‘last or revised sanctioned plan’
( as suggested by Mr. Khandeparkar ) is accepted, the same would
tantamount to reducing the land entitlement of the first
building/society without any fault on its part. Thus, if the proposition
canvassed by Mr. Khandeparkar is accepted, the same would mean that
Building No.1 would receive conveyance only of land admeasuring 2500
sq.m. though its entitlement in respect of area of 5000 sq.m. was
already crystallised/frozen in May 2005.
169. The concept of freezing/crystallisation of the land entitlement
under twin effects of Sections 10 and 11 of MOFA and Rules 8 and 9 of
MOF Rules is also in tune with the legislative objective of MOFA. There
is a purpose behind prescribing the periods for performance of the twin
acts of formation of society and conveyance of land. The legislative
objective is that the organisation of flat purchasers must become owner
of the land and the developers do not misuse the delay in conveyance
for the purpose of putting up additional construction. As discussed
above, the developer’s title in the land dilutes with sale of each flat in a
building. Even in a layout development, once the plans are drawn up for
construction of multiple buildings, and the first building is taken up for
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development and all flats therein are sold, the developer gets divested
of title in the proportionate land. Mere failure on his part to convey that
proportionate land does not mean that the developer can subject the
land in which he is divested of the title for revision of plans for securing
additional built-up area in the under construction or yet to be
constructed building(s) in the layout.
170. Thus, what occurs by subsequent revision of plan is actually
stealing of rights of the organisation of flat purchasers by the developer
and loading the same on the subsequent buildings. The act of stealing is
apparent in following the illustration:
(i) In a Plot size of 10000 sq.m. with FSI 1.00, the original
sanctioned BUA is 10000 sq.m., divided in two buildings of 5000
sq.m. each. In normal circumstances, both buildings would
receive conveyance of 5000 sq.m. land each. The developer
completes construction of Building No. 1 but denies conveyance
of 5000 sq.m. land on the ground of incomplete layout
development. There is a change in FSI regime or the TDR
loading limit increases, which effectively permits construction
of 1.5 times the land area ( total BUA of 15000 sq.m. ). Here, both
buildings become entitled to increased BUA of 5000 sq.m. ( 2500
sq.m. for each building ). However, by not conveying land in favour
of the first building, the developer steals the increased BUA of
Building No. 1 and utilises it for putting up additional
construction of Building No.2 ( comprising BUA of 10,000 sq.m ).
(ii) Thus, what legitimately belongs to Building No. 1 is
misappropriated by the developer and encashed by delaying
conveyance of land to Building No. 1. The organisation formed
by the flat purchasers of Building No. 2 then claim land
corresponding to the BUA of 10,000 sq.m. (67 % share in the
land ).
(iii) If however, the legitimate entitlement of Building No. 1,
as on the date when the conveyance was due, is frozen, it would
own 50% land in the layout. When the buildings are
redeveloped, Building No. 1 would regain the lost entitlement.
(iv) Thus, the principle of land freezing ensures that what
legitimately belongs to Building No. 1 is not lost.
171. In view of the above discussion, the concept of freezing of
entitlement of share in the land of each society upon completion of
statutory prescribed periods under MOFA Act and MOF Rules would
resolve the conundrum involved in cases where layout plans are revised
by the developers with a view to milk the additional FSI/BUA.
172. The above discussed principle of freezing/crystallisation has also
emerged from the suggestions given on behalf of the State Government
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in the Note. For the sake of convenience, it would be apt to reproduce
the relevant suggestion made by the learned Advocate General:
i. The obligation of the promoter to convey the land and
building arises and crystallises in terms of Section 11 r/w Rule 9
of MOFA and MOFA Rules, respectively.
ii. For example: If one building on a plot of land is completed
consuming part FSI and balance potential of FSI is not utilized,
then in that event, the entitlement of the society has crystallised
on Occupation Certificate being received and such society ought
to get conveyance of the land component on the basis of FSI
consumed. FSI being calculated as both Base FSI and TDR
regardless of the fact that TDR has been used or not.
iii. If in future, the development potential increases because of
the change in DCR and the developer takes benefit of such
increased development potential including TDR and utilises the
same on the balance portion of the land, it would result in clear
imbalance of the plot of land and the FSI. In such a situation, the
first society whose rights are crystallised ought not to be
deprived of the entitlement of the appropriate land component
based on the FSI consumed.
Therefore, the concept of freezing of the first plan for conveyance
173.
purposes would be the solution to ensure that the successive revisions
in the plans do not affect the land entitlement of existing buildings in
the layout.
19)
Ordinarily, following the law enunciated by this Court in
Satellite Garden-I CHSL , this Court would have upheld the right of the
Petitioner-society for conveyance of the land in proportion to BUA
utilized for construction of its building in accordance with the OC plan
dated 14 October 2009. However, the principle of freezing/crystallization
of land entitlement enunciated in Satellite Garden-I CHSL cannot be
applied in the facts and circumstances of the present case. In Satellite
Garden-I CHSL , this Court has recognized an exception to the principle
of freezing/crystallization of land entitlement, where there is express
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consent for revision of plan. This Court has held in paragraphs 210 and
211 of the judgment 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.
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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).
20) The principles summarised by this Court in Satellite
Garden-I CHSL governing the conveyance of land in a layout
development are 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
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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).
21) Thus, the usual principle of freezing/crystallization of land
entitlement does not apply in a case where the flat purchasers of earlier
buildings/their societies have given a written consent for
modification/revision of the plan. This Court has held that the exercise of
proportionate land division in cases involving consents would be on the
basis of the plan, which has such consents.
22) In the present case, Respondents Nos.3 to 7 have relied on
Affidavit-cum-No Objection dated 22 August 2014 executed by the flat
purchasers of Sangar Enclave building. The said Affidavit-cum-No
objection is signed and executed by each of the flat purchasers in respect
of Sanjar Enclave building. It appears that at the time of execution of the
Affidavit, flat purchasers of Sangar Enclave building were in the process
of forming a co-operative housing society. In their Affidavit-cum-No
Objection, which is executed on a stamp paper of Rs.100/-, the flat
purchasers agreed as under:
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We, the Promoters/Members of the SANJAR ENCLAVE PREMISES CO-
OP SOCIETY LTD.(PROPOSED) state on solemn affirmation as under:
We have Purchased Commercial premises from (1) Abdul Latif Haji
Adam, (2) Siraj Mohammed Haji Adam (3) Aahref Mohammed Haji
Adam and (4) Abdul Sattar Haji Adam, all Co-Owners of Mumbai Indian
Inhabitants having their address at Gulzar House, SV Road,
Malad(West), Mumbal-400-064. We have Purchase the Premises/Office
at SANJAR ENCLAVE PREMISES CO-OP. SOCIETY LTD.(PROPOSED) by
executing agreement All the Terms and Conditions mentioned in the
Agreement are binding upon all the members of the SANJAR ENCLAVE
PREMISES CO-OP. SOCIETY LTD. (PROPOSED).
1. The Property bearing non-agricultural Survey Nos. 32, 32-A and 32-3
and corresponding CTS. No. 428A, 428A/1 to 20 and 428B of Vilage
Malad (N) or Part of which the said Building SANJAR ENCLAVE
PREMISES CO-OP. SOCIETY LTD (PROPOSED) is constructed. The
Members/Promoters have Purchase the Office premises in the said
Building which is approved for Commercial Purpose. After Construction
of Building of SANJAR ENCLAVE PREMISES CO-OP, SOCIETY LTD.
(PROPOSED) on the Part portion of the said Plot of Land bearing Survey
Nos. 32, 32-A and 32-B and corresponding CTS. No. 428A, 428A/1 to 20
and 428B of Village Malad (N) some/balance Portion of the said Plot is
yet to be developed and Balance TDR and FSI of the whole Plot of Land
is to be ceraumed on the said plot of Land by the Co-Owners (1) Abdul
Latif Haji Adam, (2) Siraj Mohammed Haji Adam (3) Ashraf Mohammed
Haji Adam and (4) Abdul Sattar Haji Adam. All this is belonging to the
Co owners and we the Members of the SANJAR ENCLAVE PREMISES
CO-OP, SOCIETY LTD. (PROPOSED) will not take any objection for the
same.
2. Adjoining to SANJAR ENCLAVE PREMISES CO-OP, SOCIETY LTD
PROPOSED) their are other old buildings on the same Plot of Land
which will be redevelopment by the Co-owners
(1) Abdul Latif Haji Adam, (2) Siraj Mohammed Haji Adam (3) Ashraf
Mohammed Haji Adam and (4) Abdul Sattar Haji Adam on the said
property as and when the Co-owners will decide. We the Members of
SANJAR ENCLAVE PREMISES CO-OP, SOCIETY LTD PROPOSED) will
not take any objection for the same.
3. The Co-Owners/Vendors (1) Abdul Latif Haji Adam (2) Straj
Mohammed Haji Adam (3) Ashraf Mohammed Haji Adam and (4) Abdul
Sattar Haji Adam will be constructing additional buildings or separate
building in the same Plot of Land by utilizing the additional FSI on
account of TDR as may be available to the Co-Owners/Vendors as per
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the new Development Control Regulations published in 1991 as also
such further benefit in FSI as may be available due to increase of FSI in
the same locality or due to any other provisions of the said Regulations,
we the Members SANJAR ENCLAVE PREMISES CO-OP. SOCIETY LTD.
(PROPOSED) will not take any objection for the same.
4. The Co-Owners/Vendors (1) Abdul Latif Haji Adam, (2) Siraj
Mohammed Haji Adam (3) Ashraf Mohammed Haji Adam and (4) Abdul
Setter Haji Adam may sell, assign, transfer or otherwise deal with their
right, title and Interest in the said Balance property/Layout and/or in
the building to be constructed thereon we the Members of the SANJAR
ENCLAVE PREMISES CO-OP. SOCIETY LTD.(PROPOSED) will not take
any objection for the same.
5. The Co-Owners/Vendors (1) Abdul Latif Haji Adam, (2) Siraj
Mohammed Haji Adam (3) Ashraf Mohammed Haji Adam and (4) Abdul
Sattar Haji Adam will make modification, alteration, re-allocation or
change in layout or R.G as approved by the Municipal Corporation, we
the Members of the SANJAR ENCLAVE PREMISES CO-OP, SOCIETY
LTD.(PROPOSED) will not take any objection for the same.
6. The Co-Owners/Vendors (1) Abdul Latif Haji Adam, (2) Siraj
Mohammed Haji Adam (3) Ashraf Mohammed Haji Adam arid (4) Abdul
Sattar Hafi Ad um have already started development work in their
remaining part of land in their Layout, we the Members of the SANJAR
ENCLAVE PREMISES CO-OF SOCIETY LTD. (PROPOSED) will not take
any type of objection for the same including for all the plans approved
by the Authority.
7. The Sub Station for Whole layout is constructed in the Still Area of
SANJAR ENCLAVE PREMISES CO-OP. SOCIETY LTD.(PROPOSED) which
is approved by BMC. From this Sub-Station other Buildings in the same
plot of Land as and when the Co-Owners will develop Reliance Energy
will be giving connection to other Buildings which are to be constructed
in the same plot of Land for the Full Layout. We the Members of the
SANJAR ENCLAVE PREMISES CO-OP. SOCIETY LTD (PROPOSED) will
not take any objection for the sarme.
8. The Co-Owners/Vendors (1) Abdul Latif Haji Adam, (2) Size)
Mohammed Hajl Adam (3) Ashraf Mohammed Haji Adam and (4) Abdul
Sattar Haji Adam will execute the conveyance in favour of the Proposed
Society only after development of the whole layout bearing Survey Nos.
32, 32-A and 32-B and corresponding C.TS. No. 428A, 428A/1 to 20 and
428B of Village Malad (N) by them and we the Members of the SANJAR
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ENCLAVE PREMISES CO-OP SOCIETY LTD.(PROPOSED) do not have
any objection for the same.
We the Members of SANJAR ENCLAVE PREMISES CO-OP. SOCIETY
LTD.(PROPOSED), hereby given his/her consent to the
Co-Owners/Vendors (1) Abdul Latif Haji Adam, (2) Siraj Mohammed
Haji Adam (3) Ashraf Mohammed Haji Adam and (4) Abdul Sattar Haji
Adam for all above clauses mentioned in this Arfidavit in respect of
futher development of their layout. We the members will never interfere
nor arise any objections for further Development of the other buildings
which will be constructed at any time by the Co Owners in the said plot
of Land.
23) Thus, in the Affidavit-cum-No Objection dated 22 August
2014, the flat purchasers of the Sanjar Enclave building confirmed that
their building stands on only a part of the plot and that the balance
FSI/TDR in respect of the entire plot belongs to the co-owners. That they
did not have objection to redevelopment of old building or for
construction of additional/separate buildings using TDR. That they have
no objection for modification of the layout or RG etc. They also agreed
for execution of conveyance only after development of the whole layout.
24) According to Mr. Kakalia, the Affidavit-cum-No Objection
dated 22 August 2014 contains nothing but blanket consent clauses. He
submits that the Affidavit-cum-No Objection does not indicate in any
manner that the flat purchasers were shown either the approved plans or
details of proposed development. He has submitted that the Affidavit-
cum-No Objection was taken from the flat purchasers as a condition
precedent for formation of the Petitioner-society. Mr. Kakalia has
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therefore submitted that the Affidavit-cum-No Objection cannot be
treated as a consent within the meaning of Section 7 of MOFA.
25) On the other hand, Mr. Khandeparkar has submitted that the
Competent Authority cannot adjudge the issue of validity of those
consents as held by this Court in Satellite Garden I CHSL . Mr. Kakalia
has countered the submission by placing reliance on judgment of this
Court in Rose Villa CHSL . According to Mr. Kakalia, if the consents relied
upon by a developer/land owners contains blanket consent clause,
Competent Authority is justified in ignoring them by treating them as
non-existing consents. He submits that in Rose Villa CHSL , this Court
has drawn a distinction between the concepts of existence of consent
and validity of consent.
26) In Rose Villa CHSL , there was a dispute before the
Competent Authority about the nature of consent letters. The society
therein had contended that what was secured by the developer was a
blanket consent whereas it was the contention of the developer that
consents were given after perusal of the approved plans. This Court has
ruled in Rose Villa CHSL by taking into consideration the judgment of
this Court in Nahalchand Laloochand Pvt. Ltd. Versus. Shree
4
Panchamurti CHSL that in exercise of limited jurisdiction, Competent
Authority can conduct prima-facie enquiry about existence of or
otherwise of consent and that it need not blindly rely upon defence taken
by developer that flat purchasers have consented to the additional
construction in the building or in the layout. This Court has held that
4
2025 SCC Online Bom 341
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mere raising of a plea by a promoter/developer about existence of
consents by flat purchasers is not enough and the Competent Authority
can direct production of such consents and can satisfy itself about
existence or otherwise of such consents. This Court held in paragraphs
34 to 40 of the judgment as under :
34. In Nahalchand Laloochand (supra), this Court has held that the
Competent Authority can take into consideration the factum of
consents under Section 7 of MOFA. The Court held in paras-12 and 13
of the judgment as under:
12. The statutory field of the Maharashtra Ownership Flats
(regulation of the Promotion, Construction, Sale, Management
and Transfer) Act, 1963 (“MOFA”) imposes a threefold obligation
upon the promoter: (i) to execute and register agreements under
Section 4; (ii) to facilitate the formation of a legal entity or
society of flat purchasers under Section 10; and (iii) to execute a
conveyance of title within the stipulated timeline contemplated
under Section 11. The regulatory framework is further fortified
by Rule 8(1) of the Maharashtra Ownership Flats (regulation of
the Promotion, Construction, Sale, Management and Transfer)
Rules, 1964 (“the MOFA Rules”), which requires mat a
conveyance be executed within four months of the formation of
the society. Upon failure by the promoter to comply, the
competent authority is empowered under Section 11(4) of the
Act to grant a “deemed conveyance.” This legislative
intervention was introduced to address the systemic defaults of
errant promoters, who often failed to fulfill their contractual and
statutory obligations, leaving flat purchasers perpetually
deprived of proprietary rights in the land and building.
13. However, it cannot be gainsaid that the competent
authority's functions under Section 11 are not unfettered. They
are circumscribed by fundamental norms of procedural fairness,
which include:
(i) verification of the authenticity of the agreements and
consents under Section 7 of MOFA;
(ii) affording the promoter a reasonable opportunity to
contest the application under Rule 9(3) of the MOFA
Rules; and
(iii) ensuring that the society's claim aligns with the
sanctioned plan and the registered agreements.
(emphasis and underlining added)
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It is thus held in Nahalchand Laloochand that the Competent
Authority can conduct inquiry into authenticity of consents under
Section 7 of MOFA.
35. Thus, even in exercise of its limited jurisdiction, the Competent
Authority can conduct a prima facie enquiry about existence or
otherwise of consents to the additional construction in the building or
in the layout. Mere raising of a plea by a promoter/developer about
existence of consents by the flat purchasers is not enough and the
Competent Authority can direct production of such consents and can
satisfy itself about existence or otherwise of such consents. It therefore
cannot be contended that the issue of existence of consents under
Section 7 of MOFA is altogether outside the jurisdiction of the
Competent Authority.
36. Mr. Joshi has contended that once consent letters are produced
before the Competent Authority, it must accept the same and cannot
enter into the controversy as to whether the consents are valid or
otherwise. While there can be no difficulty in accepting what is
suggested by Mr. Joshi, the issue for consideration is whether the
Competent Authority would blindly accept every consent and proceed
to reject the application for deemed conveyance? The answer, to my
mind, appears to be in the negative. Though the Competent Authority
cannot conduct a detailed enquiry into the validity of consents, it can
prima facie satisfy itself as to whether there exists a consent within the
meaning of Section 7 of MOFA or not. A party aggrieved by the decision
of Competent Authority can file a suit and seek a declaration to the
contrary from Civil Court.
37. There is fine distinction between ‘existence of consent’ and
‘validity of consent’. While the Competent Authority can record a
finding about ‘existence’ of consent, it cannot determine the issue of
‘valid’ consent, which inquiry would fall squarely into the realm of a
Civil Court. However, whether mere production of a consent letter
would ouster jurisdiction of the Competent Authority is the issue for
consideration.
38. Promoters and developers do incorporate wide and blanket
clauses in the Agreements for Sale for recognising their entitlement to
milk future development potential in the land and the building. These
are popularly known as ‘blanket consent’ clauses. By now, the law is
well settled that such blanket consent clauses are
ineffective/unenforceable and do not entitle a developer to carry out
additional construction in the building or in the layout. While seeking
consent of flat purchasers for putting up additional construction in the
building or in the layout, it is mandatory that a full disclosure is made
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to the flat purchasers about the nature of additional construction. This
would include disclosure of the existing development potential, the
additional development potential made available, number of additional
floors and additional flats to be constructed etc. A developer cannot
simply secure consent to put up additional construction without
making disclosure of the necessary details. By now, the law is well
settled in this regard by judgments of this Court in Dosti Corporation ,
5
Eternia CHSL and Ors. Vs Lakeview Developers and Ors. and
6
Rajkumar Gulati and Ors. Versus. S.D. Corporation Pvt. Ltd. and Ors .
39. Over the period of time, the promoters have exhibited a
tendency to circumvent the statutory provisions under MOFA about
embargo on additional construction contrary to disclosures. Obtaining
blanket consents from flat purchasers was one of the modus operandi ,
which Courts were required to hold as unenforceable. After the blanket
consent clauses are held to be unenforceable, the developers have in
some cases started segregating the blanket consent clause from the
Agreements and printed the same in the form of a separate letter. The
clause is virtually the same empowering additional construction
without adequate disclosure. However, the same is in the form of a
separate letter. The issue for consideration is if such kind of consent
letters are produced, whether the Competent Authority would
immediately lose jurisdiction to decide the application of deemed
conveyance on the ground that the full construction as per the consent
letter is yet to be completed? Again, the answer to my mind appears to
be in the negative. Some prima facie inquiry by the Competent
Authority into ‘existence’ of consent would be necessary and production
of such letters would not mean that existence of consent is proved. It
can record a finding that the consent letters do not conform to the
requirement of Section 7 of MOFA. Such finding would be rebuttable
and can be questioned by the aggrieved developer before the Civil
Court. If it is held that the competent authority must reject the
application for deemed conveyance upon production of such letters
containing blanket consent clauses, the developers would take
disadvantage of such situation and would thereby delay conveyance of
land by securing such letters from flat purchasers while selling the flats.
40. Thus, the Competent Authority needs to make a prima facie
enquiry into existence or otherwise of consents within the meaning of
Section 7 of MOFA even while deciding application under Section 11 of
MOFA. It cannot blindly rely upon the defence taken by developer that
flat purchasers have consented to additional construction. It can
conduct a prima facie inquiry into the aspect of disclosure preceding the
consent and if it finds that the consent secured is without disclosing
any details of additional construction, it can ignore the consent letters
5 2015 SCC OnLine Bom 723
6 2025 SCC Online Bom 4370
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and proceed to convey the land. What it cannot conduct is an inquiry
into adequacy of disclosure. To illustrate, if consent for putting up
additional construction of disclosed area is secured, Competent
Authority cannnot go into issue as to whether disclosure includes
information about number of floors/flats, plinth of additional structure
etc. This inquiry would be about validity of consent and outside the
scope of inquiry of the Competent Authority. However, if a mere blanket
consent is produced, the Competent Authority can look into the same
and hold that there is no consent.
27)
In the facts of the case in Rose Villa CHSL , this Court held
that at the time of execution of consents, plans were not approved. This
is clear from following observations made by this Court in paragraph 42
of the judgment:
42. Since consent letters referred to examination of the ‘approved
plans’ , this Court repeatedly enquired with Mr. Joshi about the exact
plan which was allegedly disclosed to the flat purchasers at the time of
securing their consents. Till the petition was heard, Respondent No.2
had not placed on record any plan which was approved by MCGM at the
time of execution of the consent letters. On the contrary, it was always
the stand of Respondent No.2 that the revised Commencement
th th
Certificate was issued for construction of 7 and 8 floor in the year
2020. However, during the course of hearing and even after the hearing
ended, Mr. Joshi has placed on record copies of several plans. He has
placed on record the plan which was allegedly submitted to MCGM for
approval in the year 2017. He has referred to the said plan as a
‘Concession Approval’. However, there is nothing on record to indicate
that the plan allegedly submitted to MCGM for approval in September
2017, was approved and that such approved plan was brought to the
notice of the flat purchasers. Mr. Joshi has relied on a flowchart to
demonstrate as to how the plan submitted in September 2017 was
approved on 8 November 2017. Even if it is momentarily accepted that
the plan was indeed approved by MCGM on 8 November 2017, it is seen
that most of the consent letters are signed prior to 8 November 2017.
Only 7 consent letters in respect of 7 flats are apparently signed after 8
November 2017. There are total 24 flats in the building out of which 23
flats are sold. This means that the consent letters in respect of 16 flats
are executed before the alleged sanction of plan on 8 November 2017. It
therefore becomes difficult to accept that the flat purchasers were even
shown the approved plans for the purpose of securing their consents. In
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th th
respect of majority of flats, no approved plan in respect of 7 and 8
floor of the building existed when their alleged consents were obtained.
28) In the present case, Mr. Kakalia has contended that
members of Petitioner-society were not shown the revised plans and
their blanket consents have been obtained. Ordinarily, following the
ratio of the judgment in Rose Villa CHSL , this Court could have directed
Competent Authority to undertake an enquiry into the aspect of
existence or otherwise of consents within the meaning of Section 7/7A of
MOFA. However, there is difficulty in adopting such a course of action in
the facts of the present case. Petitioner did not seek any enquiry into
validity of consents before the Competent Authority. On the other hand,
it suppressed the Affidavit-cum-No Objection dated 22 August 2014 in
the deemed conveyance application. It also suppressed existence of
Akshar Kunj CHSL and Madina Manzil buildings in its deemed
conveyance application. Far from seeking an inquiry before the
Competent Authority into the issue of validity of consents, Petitioner
filed L.C. Suit No. 1570 of 2020 before the City Civil Court, Dindoshi
inter-alia challenging the consents. Respondent Nos.3 to 7 have placed
on record copy of plaint in L.C. Suit No. 1570 of 2020. Prayer clause (a) of
the plaint reads thus:
(a) that this Hon'ble Court be pleased to declare that the undated suit
Affidavit cum No Objection on a stamp paper dated 22nd August, 2014
is illegal, bad in law, arbitrary, malafide, unenforceable and not binding
upon the Plaintiffs;
29)
Thus, the Petitioner-society accepted the position that
Competent Authority is not competent to decide the issue of existence or
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validity of consent and that the same need not be adjudicated by the
Civil Court. It has accordingly sought a declaration in the suit that the
Affidavit-cum-No Objection is illegal, bad in law, ab-initio void, arbitrary
and not binding on it. Having done so, the Petitioner cannot now turn
around and contend, by relying on this Court’s judgment in Rose Villa
CHSL , that the issue of the validity or otherwise of the consent must be
adjudicated by the Competent Authority in proceedings under Section 11
of the Act. Petitioner is bound by its conduct in not seeking adjudication
of issue of valid existence of consent by the Competent Authority in
Section 11 application. In my view therefore, the issue of valid existence
of consent can be adjudicated only by a Civil Court on account of filing of
L.C. Suit No. 1570 of 2020 by the Petitioner.
30) If contention of Mr. Kakalia is accepted and if this Court
determines the issue of valid existence of consent, it would tantamount
to conduct of parallel inquiry on the same issue by two fora. Mr. Kakalia
has contended that, in the exercise of its wide jurisdiction under Article
227 of the Constitution of India, this Court is not precluded from
enquiring into the issues of validity of the consents or whether such
consents validly exist. However, what is being done in the present
petition by this Court is to examine correctness of order passed by the
Competent Authority. What the Competent Authority is precluded from
doing in law cannot be undertaken by this Court in the exercise of its
supervisory and corrective jurisdiction under Article 227 of the
Constitution of India. In the present case, the Petitioner did not seek
adjudication by the Competent Authority on the issue of the validity of
the consents. In any event, in view of the filing of a suit seeking
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adjudication of the said issue after the filing of the deemed conveyance
application, the Competent Authority cannot undertake that enquiry.
Thus, the Competent Authority is precluded by the Petitioner itself from
conducting enquiry into the valid existence of consents. It cannot now
turn around and contend that though Competent Authority has not
conducted that enquiry, this Court can conduct the same in exercise of
extraordinary jurisdiction under Article 227 of the Constitution of India.
31)
Thus the Petitioner’s modified prayer before this Court for
conveyance of proportionate land in the layout hinges squarely on the
issue of valid existence of consents. If consents executed by the members
of the Petitioner-society are found to be valid, modifications to the OC
plan dated 14 October 2009 would become valid for conveyance
purposes. All constructions carried out in pursuance of such consents
would be rendered valid in the eyes of law. Following the exception
recognised in judgment of this Court in Satellite Garden-I CHSL
conveyance would only be in accordance with modified plans, which have
valid consents. On the other hand, if Petitioner succeeds in the suit and
secures a declaration that the Affidavit-cum-No Objection dated 22
August 2014 is illegal or void and does not amount to a consent under
Section 7 of MOFA, conveyance will have to be restricted as per OC plan
dated 14 October 2009. Petitioner therefore needs to await the decision
of L.C. Suit No. 1570 of 2020. Its claim to secure proportionate share in
the land can only be adjudicated after decision of prayer clause 61(a) in
L.C. Suit No. 1570 of 2020.
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32) Mr. Khandeparkar has relied on events that have occurred
after filing of the present petition especially in relation to various orders
passed in L.C. Suit No.1570 of 2020. According to him, order dated 16
June 2021 is passed by the City Civil Court restraining Respondent Nos.3
to 7 only from constructing the suit building touching Sanjar Enclave
building. Otherwise, no injunction has been granted for construction of
the building in place of Madina Manzil building. Rejection of injunction
by order dated 16 June 2021 was challenged by the Petitioner-society by
filing Appeal From Order No.142 of 2021 and by order dated 28 July 2021,
no further injunction is granted in favour of the Petitioner by this Court.
It appears that the plaint has been amended on 11 August 2023 for
claiming entire RG admeasuring 555.45 sq.mts, 60% share in another RG
of 518.87 sq.mts and possession of land component of 2222.52 sq.mts.
After completion of construction of building in place of Madina Manzil
building ( Fortune Heights) , part OC has been granted on 30 October 2024
and 19 October 2026.
33)
In my view, however it is not necessary to take into
consideration the subsequent events post rejection of Petitioner’s
application for deemed conveyance. Even though the Trial Court has
refused injunction in favour of the Petitioner, it cannot be presumed at
this stage that the society may not succeed in the suit. Based on evidence
before it, if the Trial Court comes to the conclusion that the Affidavit-
cum-No Objection dated 22 August 2014 does not form valid consent
within the meaning of Section 7 of MOFA, the same would reflect upon
validity of construction of Fortune Heights building. It is too early at this
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stage to speculate the exact outcome of the suit filed by the Petitioner. I
am therefore not inclined to make any observations about validity or
otherwise of consent contained in Affidavit-cum-No Objection dated 22
August 2014 and the entire issue is kept open for the City Civil Court to
decide. The City Civil Court shall consider whether appropriate
disclosures were made to the flat purchasers of the Sanjar Enclave
building before obtaining their consent on 22 August 2014, and whether
the consents so executed conform to the provisions of Section 7 of
MOFA. All rights and contentions of the parties in this regard are
expressly kept open.
34)
I am therefore of the view that Petitioner cannot seek
conveyance of proportionate land at this stage based on OC plan dated
14 October 2009 i.e. land proportionate to BUA of 4109.64 sq. mts
utilised in its construction. It will have to await final decision of L.C. Suit
No. 1570 of 2020.
35) In my view therefore, Petitioner-society needs to await
decision of L.C. Suit No. 1570 of 2020 filed by it before the City Civil
Court. It is not that the building of the Petitioner-society is very old or
in a dilapidated condition. The OC therefor has been issued on 14
October 2009. The apprehension that the Petitioner carries is that
Respondent Nos.3 to 7 have already constructed building-Fortune
Heights in place of the earlier structure-Madina Manzil and that they are
likely to further redevelop the building Akshar Kunj CHSL by exploiting
the development potential in respect of the plot, part of which belongs to
it. The apprehension of the Petitioner-society is not totally unfounded.
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By delaying conveyance of the land till completion of layout
development, Respondent Nos.3 to 7 basically want to exploit the entire
development potential created out of change in FSI regime. Petitioner’s
suit is already pending before the City Civil Court. In the event, any
further modification in the plans is applied for by Respondent Nos. 3 to 7
for the purpose of carrying out further construction in the form of
redevelopment of the building of Akshar Kunj CHSL and if it is
demonstrated that Petitioner’s rights in respect of additional
development potential would be trampled upon, the Petitioner would
obviously be at liberty to seek appropriate temporary injunction in the
pending suit. It is also in the interest of the parties that the suit is
decided in an expeditious manner with a view to ensure that there is
clarity about the development activities that would be carried out in the
layout. If the consents are found to be invalid and contrary to the
provisions of Section 7 of MOFA, the same would obviously affect not
only the construction of Fortune Heights building, as well as further
construction to be carried out by Respondent Nos.3 to 7. It is therefore in
the interest of all the parties that L.C. Suit No. 1570 of 2020 is decided in
an expeditious manner.
36) Next issue for consideration is whether the Petitioner can
apply for conveyance of proportionate land even before completion of
process of redevelopment of Akshar Kunj building. The answer is in the
affirmative. Mr. Khandeparkar has contended that in the Affidavits-cum-
Consent, the members of Petitioner-society have agreed for conveyance
only after the entire layout development. Even though the members of
the Petitioner-society may have agreed for execution of conveyance after
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development of the layout, there can be no estoppel against law. As of
now, conveyance of proportionate land in favour of the Petitioner-
society is postponed only on account of pendency of disputes relating to
validity of the consents. Provisions of MOFA read with Government
Resolution dated 22 June 2018 create a right in favour of a society in the
layout to secure conveyance of proportionate land even before
completion of development of the entire layout. As of now, the
development of the layout is complete as a co-operative society would be
formed in respect of Fortune Heights building and there are already two
other societies viz. Petitioner and Akshar Kunj CHSL. Redevelopment of
Akshar Kunj CHSL cannot be treated as incomplete layout development.
Even if the Petitioner loses in the suit, it would only have to agree for
proportionate land division by taking into consideration the BUA used in
construction of the building Fortune Heights/Madina Manzil. Pendency
of the suit or the agreement in the Affidavit for conveyance of land upon
completion of layout development does not give a right to the
landowners to continue milking the development potential in the land by
undertaking further development of Akshar Kunj building. The
competing claims as of now is only with regard to determining the
proportionate land of Fortune Height building. If the suit is decreed the
land division would be in accordance with the original plan and if the
suit is dismissed the land division would be as per the revised plan
sanctioned for construction of Fortune Heights building. In my view
therefore, immediately after decision of L.C. Suit No. 1570 of 2020,
Petitioner can apply for conveyance of proportionate land in its favour
and it is not necessary to await redevelopment of building of Akshar
Kunj CHSL. In fact, early disposal of the suit would provide clarity even
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qua the entitlement of Akshar Kunj CHSL as well. If Petitioner succeeds
in the suit, the success would enure to the benefit of Akshar Kunj CHSL
as well and it can claim proportionate land in the layout as per the plan
dated 7 August 2003 and not as per the 2019/2020 plan of Fortune
Heights Building. To paraphrase, conveyance cannot be delayed to
further benefit the land owners, for whom the time has arrived to quit
the scene so far as conveyance is concerned. It would therefore be
appropriate that the pending suit is decided in an expeditious manner.
37)
In view of the above discussion, no interference is warranted
in the impugned order passed by the Competent Authority. The Writ
Petition is accordingly disposed of without granting the relief of
conveyance in Petitioner's favour at this juncture. However, Petitioner
would be at liberty to file a fresh application for deemed conveyance
before the Competent Authority after decision of L.C. Suit No. 1570 of
2020. The City Civil Court shall decide the L.C. Suit No. 1570 of 2020 as
expeditiously as possible, preferably within 6 months. There shall be no
orders as to cost.
NEETA
SHAILESH
SAWANT
[SANDEEP V. MARNE, J.]
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.11.03
18:28:04 +0530
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