Full Judgment Text
2026:BHC-AS:18699
WP-13685-22 with connected.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13685 OF 2022
Ganesh Krupa CHS Ltd
Through Its Chairman
Sandeep V. Chitre
Having its Office at M5,
Kashish Park, LBS Marg Mulund Check Naka
Thane (W) 400604 (Maharashtra)
… Petitioner
SHABNOOR
AYUB
PATHAN
Digitally signed by
SHABNOOR AYUB
PATHAN
Date: 2026.04.21
12:37:15 +0530
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies, Thane
st
having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road,
Thane – 400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its
Regd. Office at Kashish Park FGP Ltd.
Complex LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9,
Wallace Street, Fort, Mumbai- 400001
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5. Ladam Homes Pvt Ltd (Marketing Agency)
Having its office at Ladam House, M Road,
Wagle Industrial Estate
Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society Ltd
Through its Secretary Office at
LBS Marg Near Kashish Park
Mulund Check Naka
Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation Ltd,
through its Secretary Having office at
Commercial Union House, Wallace Street,
Azad Maidan, Fort, Mumbai-400001.
…. Respondents
WITH
WRIT PETITION NO. 15129 OF 2022
Siddhivinayak CHS Ltd
Through its Chairman, Nandkumar Manohar
Gosavi, Having its office at M3, Kashish Park,
LBS Marg Mulund Check Naka, Thane (W)-
400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies, Thane
st
having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
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Maindan, Gokhale Road,
Thane – 400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its
Regd. Office at Kashish Park FGP Ltd.
Complex LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9,
Wallace Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd (Marketing Agency)
Having its office at Ladam House, M Road,
Wagle Industrial Estate
Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society Ltd
Through its Secretary Office at
LBS Marg Near Kashish Park
Mulund Check Naka
Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation Ltd,
through its Secretary Having office at
Commercial Union House, Wallace Street,
Azad Maidan, Fort, Mumbai-400001.
….Respondents
WITH
WRIT PETITION NO. 15131 OF 2022
Chintamani CHS Ltd,
Through its Secretary, Shri. Kishore
Harishchandra Nanche, Having its office at
M8, Kashish Park, LBS Marg Mulund Check
Naka, Thane (W)- 400604 (Maharashtra)
… Petitioner
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Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies, Thane
st
having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road,
Thane – 400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its
Regd. Office at Kashish Park FGP Ltd.
Complex LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9,
Wallace Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd (Marketing Agency)
Having its office at Ladam House, M Road,
Wagle Industrial Estate
Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society Ltd
Through its Secretary Office at
LBS Marg Near Kashish Park
Mulund Check Naka
Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation Ltd,
through its Secretary Having office at
Commercial Union House, Wallace Street,
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Azad Maidan, Fort, Mumbai-400001.
…. Respondents
WITH
WRIT PETITION NO. 15218 OF 2022
Om Ved CHS Ltd
Through its Chairman Ashish S. Pendharkar,
Having its office at M4, Kashish Park,
LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies, Thane
st
having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road,
Thane – 400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its
Regd. Office at Kashish Park FGP Ltd.
Complex LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9,
Wallace Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd (Marketing Agency)
Having its office at Ladam House, M Road,
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Wagle Industrial Estate
Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd., Through its Secretary Office at
LBS Marg Near Kashish Park
Mulund Check Naka
Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation Ltd,
through its Secretary Having office at
Commercial Union House, Wallace Street,
Azad Maidan, Fort, Mumbai-400001.
….Respondents
WITH
WRIT PETITION NO. 15220 OF 2022
Rajmata Bldng. No. M-7 CHS Ltd
Through its Secretary Mr. Ajay Pednekar
Having its office at M7, Kashish Park, LBS
Marg, Mulund Check Naka, Thane (W)-
400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
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Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
….Respondents
WITH
WRIT PETITION NO. 15127 OF 2022
Om Shree CHS Ltd
Through its Secretary Shri. Dashrath Genbhau
Gulve, Having its office at M1, Kashish Park,
LBS Marg Mulund Check Naka Thane (W)-
400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
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Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
….Respondents
WITH
WRIT PETITION NO. 15128 OF 2022
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Sai Chhaya CHS Ltd
Through its Authorised Signatory
Shri. Sanjay Dattatray Gurav,
Having its office at M2, Kashish Park,
LBS Marg Mulund Check Naka
Thane (W)- 400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
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Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
….Respondents
WITH
WRRIT PETITION NO. 5946 OF 2023
Neelkanth CHS Ltd., Through Vice President
Bhikaji Shantaram Salgaonkar
Having its office at M9, Kashish Park
LBS Marg Mulund Check Naka
Thane (W) 400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
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4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
….Respondents
WITH
WRIT PETITION NO. 15130 OF 2022
Shree Swami Samarth CHS Ltd
Through Its Authorised Signatory Shri. Vilas
Krishna Ranade, Having its office at M10,
Kashish Park, LBS Marg Mulund Check Naka,
Thane (W)- 400604 (Maharashtra)
… Petitioner
Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
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st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
…. Respondents
WITH
WRIT PETITION NO. 15219 OF 2022
Sudarshan CHS Ltd
Through its Chairman
Maruti Y. Parab,
Having its office at M6, Kashish Park, LBS
Marg Mulund Check Naka, Thane (W)-
400604 (Maharashtra)
…
Petitioner
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Vs.
1. State of Maharashtra
Through its Secretary
Ministry of Co-operation
Mantralaya, Mumbai- 400032.
2. District Deputy Registrar and Company
Authority, Cooperative Societies Thane
st
Having his address at 1 Floor,
Gaondevi Market Building, Gaondevi
Maindan, Gokhale Road, Thane –
400602 (Maharasthra)
3. Kashish Park Realty Pvt Ltd
Through its Director Having its Regd.
Office at Kashish Park FGP Ltd. Complex
LBS Marg Mulund Check Naka Thane
(W)- 400604 (Maharashtra)
4. FGP Ltd
Through its Director Office at 9, Wallace
Street, Fort, Mumbai- 400001
5. Ladam Homes Pvt Ltd
(Marketing Agency) Having its office at
Ladam House, M Road, Wagle Industrial
Estate Thane- 4000604 (Maharashtra)
6. Residency Cooperative Housing Society
Ltd Through its Secretary Office at LBS
Marg Near Kashish Park Mulund Check
Naka Thane- 4000604 (Maharashtra)
7. Bombay Burmah Trading Corporation
Ltd, through its Secretary Having office
at Commercial Union House, Wallace
Street, Azad Maidan, Fort, Mumbai-
400001.
…. Respondents
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Mr. Ramchandra S. Apte, Senior Advocate i/b Mr.
Saurabh Oka, for petitioner in all WPs.
Mr. Pradeep Thorat with Mr. Kartikay Kaushik i/b M/s.
Narayanan and Narayanan, for respondent No. 3 in
Writ Petition No.13685/2022
Ms. K. N. Solunkhe, Additonal GP, for State-respondent
nos. 1 and 2 in writ petition No.13685/2022.
Mr. S. L. Babar, AGP, for State-respondent Nos. 1 and 2
in writ petition No.15131/2022.
Ms. A.A. Nadkarni, AGP, for State-respondent Nos. 1
and 2 in writ petition No.15128/2022.
Smt. M.S. Shrivastav, AGP, for State-respondent Nos. 1
and 2 in writ petition No.15127/2022.
Mr. Y.D. Patil, AGP, for State-respondent Nos. 1 and 2 in
writ petition No.15219/2022.
Ms. S.S. Jadhav, AGP, for State-respondent Nos. 1 and 2
in writ petition No.15129/2022.
Smt. A.A. Purav, AGP, for State-respondent Nos. 1 and 2
in writ petition No.15130/2022.
Mr. A.A. Alaspurkar, AGP, for State-respondent Nos. 1
and 2 in writ petition No.15220/2022.
CORAM : AMIT BORKAR, J.
RESERVED ON : APRIL 07, 2026.
PRONOUNCED ON : APRIL 21, 2026
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JUDGMENT:
1. By the present writ petitions instituted under Articles 226
and 227 of the Constitution of India, the petitioner has assailed the
legality, correctness and propriety of the order dated 22 July 2020
passed by respondent No. 2, namely the District Deputy Registrar,
whereby the application preferred under Section 11(3) of the
Maharashtra Ownership Flats Act, 1963, came to be partly
allowed. The challenge is essentially founded on the contention
that the Competent Authority failed to exercise jurisdiction in
accordance with the statutory mandate governing grant of deemed
conveyance.
2. The facts giving rise to the present writ petitions, in brief, are
thus. By the impugned order, respondent No. 2 granted deemed
conveyance only in respect of the building structure and declined
to include the underlying land, the appurtenant portion adjoining
the building, and the proportionate undivided interest in the
common open spaces and amenities, aggregating to 1219.525
square meters. According to the petitioner, such course is contrary
to the scheme and object of the MOFA Act, 1963, and also
inconsistent with the registered agreements executed under
Section 4 thereof. It is the petitioner’s case that respondent No. 4
was the absolute owner of land admeasuring 58,267.79 square
meters situated at C.S. Nos. 2 to 21, 37, 38, 39 and 40 (Part),
Village Naupada, Taluka and District Thane, Maharashtra, and that
respondent No. 4 had entered into a development arrangement
with respondent No. 3 for construction upon the said larger
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property. It is stated that respondent No. 3 thereafter constructed
the building in which the petitioner society is situated upon a plot
admeasuring 1219.525 square meters. The said building consists
of ground floor plus seven upper floors containing 32 flats.
Adjacent thereto, there exist approximately ten other buildings, of
which five stand upon plots admeasuring 1219.525 square meters
each, while the remaining five are situated on plots admeasuring
751.006 square meters each. The members of the petitioner society
entered into agreements for sale with respondent No. 3 developer
for purchase of respective flats, one such agreement being dated
28 March 2006. According to the petitioner, such agreements,
being registered under Section 4 of MOFA, carry statutory force
and bind the parties. It is further asserted that the contents of the
agreement clearly disclose an obligation on the part of respondent
No. 3 to convey the land component on which the building stands
together with the structure in favour of the society. Since such
agreements are expressly subject to the provisions of MOFA, all
parties thereto are bound by the statutory obligations arising
therefrom.
3. The petitioner further states that initially, as eleven adjoining
buildings formed part of one composite layout, a single
cooperative society had been constituted. However, with passage
of time, disputes and practical difficulties arose, whereupon the
occupants of all eleven buildings resolved to form separate
societies for each building. Consequently, eleven independent
cooperative housing societies came to be registered. The petitioner
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society was registered on 23 February 2012. It is contended that
upon such registration, respondent No. 3 incurred a statutory
obligation under Section 11(1) of MOFA read with Rule 9 of the
Maharashtra Ownership Flats Rules, 1972, to execute conveyance
in favour of the society within four months. Despite lapse of
several years, respondent No. 3 failed to convey either the building
or the proportionate share in land. According to the petitioner,
such inaction was deliberate and motivated by the desire to retain
developmental benefits arising from increased FSI, thereby
depriving flat purchasers of their lawful rights. It is further the case
of the petitioner that through its Advocate’s notice dated 22
August 2019, respondent No. 3 was called upon to execute
conveyance of the subject property within fourteen days. In
response, respondent No. 3 by letter dated 09 September 2019
forwarded a draft deed of conveyance. However, the proposed
draft did not contemplate transfer of any land in favour of the
society. The petitioner contends that the draft deed was contrary
both to the agreement dated 28 March 2006 and to the provisions
of MOFA. It is alleged that respondent No. 3 was intentionally
avoiding transfer of land so as to continue deriving benefits
therefrom. Thereafter, by letter dated 21 September 2019, the
petitioner sought several clarifications. Respondent No. 3, by
communication dated 07 October 2019, furnished what is
described as vague and evasive replies. Since respondent No. 3 did
not agree to execute conveyance of the land component, allegedly
in breach of Section 11 of MOFA, the petitioner approached
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respondent No. 2, the Competent Authority, by filing an
application under Section 11(3) of MOFA on 09 March 2020
seeking deemed conveyance of the land and building.
4. Upon service of notice, respondent No. 3 appeared before
the Competent Authority and filed its written statement in July
2020. The principal defence raised was that until the entire
development of the larger parcel admeasuring more than 50,000
square meters was completed, no conveyance of land could be
executed in favour of the petitioner society. According to the
petitioner, such stand was taken only to avoid transfer of
proportionate land and to retain advantages arising from residual
development potential. Thereafter, by order dated 22 July 2020,
the Competent Authority directed execution of conveyance only in
respect of the building and declined to include the land beneath
the structure or the adjoining area on the reasoning that other
buildings remained under construction or were yet to be
constructed, and that only upon completion of the full layout
development would it be proper to transfer the land beneath the
building together with proportionate interest in open spaces and
facilities admeasuring 1219.525 square meters. The petitioner
contends that the Competent Authority was bound to act in
accordance with the registered agreements and the provisions of
MOFA, and being a statutory authority, could not restrict
conveyance to the superstructure alone while excluding the land
component. The petitioner submits that a building cannot, in law
or in fact, exist independent of the land on which it stands. It is
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urged that the proportionate land reasonably necessary for
support, access and enjoyment of the structure is required to vest
in the society. The right of conveyance, it is contended, cannot be
postponed indefinitely on the ground that construction in other
portions of the larger property is incomplete. According to the
petitioner, the interpretation adopted by the Competent Authority
defeats the very object of MOFA, which was enacted to protect flat
purchasers and to ensure timely transfer of title in favour of
cooperative societies. It is thus alleged that the Competent
Authority acted in excess of jurisdiction and contrary to the
statutory scheme.
5. The record further indicates that after the order dated 22
July 2020, the petitioner society submitted an
application/representation dated 30 July 2020 before the
Competent Authority pointing out what it described as an apparent
legal error in the said order. Thereafter, respondent No. 2 issued a
corrigendum dated 06 August 2020 directing conveyance of both
the land and the building in favour of the petitioner. Pursuant
thereto, a deed of conveyance came to be executed by the
Competent Authority in favour of the petitioner society and was
duly registered before the Sub Registrar of Assurances. Being
aggrieved by the corrigendum dated 06 August 2020, respondent
No. 3 approached this Court by filing writ petitions seeking, inter
alia, quashing of the said corrigendum, the conveyance deed and
its registration. The petitioner society opposed the said
proceedings by filing a detailed reply asserting breach of
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contractual and statutory obligations on the part of the contesting
respondents. This Court, by order dated 11 December 2020,
allowed the writ petition filed by respondent No. 3 and set aside
the corrigendum dated 06 August 2020. It was held that the
Competent Authority had no power of review and therefore lacked
jurisdiction to alter its earlier order by issuing a corrigendum. It
was further held that no notice regarding the proposed
corrigendum had been given to respondent No. 3. Aggrieved
thereby, the petitioner society preferred a Special Leave Petition
before the Hon’ble Supreme Court on 12 March 2021. After
hearing learned Counsel for the petitioner, the Hon’ble Supreme
Court granted liberty to challenge the original order dated 22 July
2020 before this Court. On such liberty being granted, the
petitioner sought permission to withdraw the Special Leave
Petition. Accordingly, by order dated 09 April 2021, the Hon’ble
Supreme Court permitted withdrawal of the Special Leave Petition
with liberty to challenge the legality of the original order dated 22
July 2020. It is in these circumstances that the present writ
petitions have been instituted.
6. Mr. Apte, learned Senior Advocate appearing on behalf of the
petitioners, submits that by the present writ petition the petitioners
have called in question the order dated 22 July 2020 passed by
respondent No. 2, whereby the application preferred under Section
11(3) of the Maharashtra Ownership of Flats Act, 1963 has been
partly allowed. Learned Senior Counsel submits that under the
impugned order, respondent No. 2 has granted deemed
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conveyance only in respect of the superstructure and has failed to
direct conveyance of the land beneath the building together with
the proportionate undivided share in the open spaces, common
amenities and appurtenant facilities.
7. Learned Senior Counsel further submits that respondent No.
4 was the absolute owner of land admeasuring 58,267.79 square
meters situated at C.S. Nos. 2 to 21, 37, 38, 39 and 40 (Part),
Village Naupada, Taluka and District Thane, and had entered into
a development arrangement with respondent No. 3 for carrying
out construction upon the said larger parcel. It is submitted that
pursuant thereto respondent No. 3 constructed buildings bearing
Nos. M1 to M5, each having built-up area of 1219.525 square
meters, and buildings bearing Nos. M6 to M10, each having built-
up area of 751.006 square meters.
8. Learned Senior Counsel submits that the members of the
petitioner societies entered into Agreements for Sale with
respondent No. 3, one such agreement being dated 28 March
2006. The said agreements are duly registered and, by virtue of
Section 4 of MOFA, possess statutory recognition and binding
force. It is submitted that the parties are governed not only by the
contractual terms contained therein but also by the mandatory
provisions of MOFA. He further submits that though initially one
cooperative society had been constituted, subsequently separate
societies for each building came to be registered on 23 February
2012.
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9. It is next submitted that respondent No. 3 was under a
statutory obligation to execute conveyance in favour of the
respective societies within four months from their registration, as
contemplated under Section 11(1) of MOFA read with Rule 9 of
the Maharashtra Ownership Flats Rules, 1972. However,
respondent No. 3 failed to discharge the said obligation for several
years, allegedly with a view to retain residual development rights
and to derive advantage from enhanced FSI potential. Learned
Senior Counsel submits that in such circumstances the petitioners
were constrained to institute proceedings under Section 11(3) of
MOFA before respondent No. 2 on 9 March 2020 seeking deemed
conveyance of both land and building.
10. Learned Senior Counsel submits that respondent No. 3
appeared before the Competent Authority and opposed the said
application by filing its reply. It is submitted that respondent No. 2,
by the impugned order, has erroneously granted deemed
conveyance only in respect of the building structure while refusing
conveyance of the land component and the petitioners’
proportionate undivided share therein.
11. At the outset, learned Senior Counsel submits that a building
cannot exist as an independent legal entity divorced from the land
on which it stands. The petitioners, according to him, are entitled
to conveyance of such proportionate land as is necessary for
proper and beneficial enjoyment of the building, and such right
cannot be defeated merely on the ground that development upon
other portions of the larger layout is yet to be completed. It is
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submitted that the impugned order creates an anomalous position
whereby the petitioners are left with ownership of the structure
without any corresponding right, title or interest in the land, which
position is legally unsustainable and contrary to settled principles.
12. Learned Senior Counsel further submits that as per the
sanctioned layout of the year 2006, the balance plot area
admeasures 46,404.96 square meters. Since the built-up area of
buildings M1 to M5 is 1219.525 square meters each, every such
building would be entitled, according to the petitioners, to a
proportionate share of 2.74 percent, equivalent to 1142.01 square
meters. It is similarly submitted that buildings M6 to M10, each
having built-up area of 751.006 square meters, would be entitled
to a proportionate share of 1.52 percent, equivalent to 703.27
square meters for each building.
13. Learned Senior Counsel submits that the contention of the
developer that land cannot be conveyed because multiple buildings
exist upon the larger layout is misconceived. According to him, the
petitioners do not seek physical partition or demarcation of
separate parcels, but only claim an undivided proportionate
interest in the land.
14. In support of the aforesaid submissions, reliance is placed
upon the judgment of this Court in Lok Housing & Construction
Ltd. v. State of Maharashtra & Ors. in Writ Petition No. 6418 of
2017 , particularly paragraph 38 thereof. It is submitted that the
said decision holds that the rights of flat purchasers and of the
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society representing them crystallize on the basis of sanctioned
plans and layout disclosed at the time of execution of the
Agreements for Sale, and that entitlement to conveyance of
proportionate land and undivided share in common areas must be
determined with reference to such approved layout.
15. Further reliance is placed upon the judgment of the Bombay
High Court in Gala Complex Premises Co-operative Society Ltd. v.
Gala Wood Works & Ors. in Writ Petition No. 9353 of 2024 ,
wherein it has been held that where FSI of a larger plot has been
utilized for construction of a particular building or society, such
society would be entitled to conveyance of proportionate
undivided share in the land corresponding to the construction
raised thereon. Learned Senior Counsel submits that the aforesaid
judgments squarely govern the controversy in hand, inasmuch as
construction of the petitioners’ buildings has admittedly been
carried out by utilizing FSI available on the larger plot.
Consequently, according to the petitioners, they are entitled to
conveyance of proportionate undivided share in the land.
16. In view of the aforesaid submissions, learned Senior Counsel
contends that the impugned order dated 22 July 2020, insofar as it
denies conveyance of proportionate undivided share in the land, is
illegal, arbitrary, and contrary to the provisions of MOFA as well as
the law laid down in binding precedents, and therefore deserves to
be set aside.
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17. Per contra, Mr. Thorat, learned Advocate appearing on behalf
of respondent No. 3, opposes the present petitions and submits
that the same are liable to be dismissed at the threshold on the
ground of non-joinder of necessary parties. Learned Counsel
submits that the subject development forms part of a larger layout
admeasuring 58,267.79 square meters, out of which an area of
11,324.83 square meters has already been handed over to the
Thane Municipal Corporation. It is submitted that within the
layout there are 42 completed buildings which have obtained
Occupation Certificates, and three further buildings are under
construction. According to respondent No. 3, the present petitions
have been filed only by a few societies, whereas occupants or
societies of the remaining 35 buildings have not been impleaded. It
is further submitted that respondent No. 3 represents only three
such buildings. In these circumstances, any relief granted in the
present petitions would seriously prejudice and adversely affect
the rights of the remaining 32 buildings or societies, who are
therefore necessary and proper parties.
18. Without prejudice to the preliminary objection, learned
Counsel submits that even assuming the petitioners’ claim for
proportionate land is to be examined, the total land that can be
allocated collectively to all petitioners would be 2542.715 square
meters, being plinth area together with appurtenant land, along
with protected FSI of 9852.655 square meters, while preserving
their undivided right to use and enjoy common recreational
grounds, internal roads and open spaces within the larger layout.
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It is submitted that the aforesaid position is in consonance with
Clause C(vi)(2) of the Government Resolution dated 22 June 2018
issued by the Housing Department.
19. Learned Counsel further submits that during the course of
hearing, respondent No. 3 has tendered a chart indicating the
areas demanded by the petitioners, the areas which according to
respondent No. 3 can legally be granted, and a physical feasibility
analysis in support thereof. It is submitted that the said analysis
clearly demonstrates that if the petitioners are granted area of
1219.525 square meters each for five societies and 751.006 square
meters each for the remaining five societies, such allocation would
result in complete overlapping with plinth areas of other buildings
including Buildings MN-1 to MN-5, L1 and L2, as also internal
roads, driveways and recreational grounds, and in certain cases
would even travel beyond the layout boundary.
20. Learned Counsel submits that the said analysis demonstrates
the practical impossibility and inherent absurdity of the petitioners’
demand. It is therefore contended that the disputes raised in the
present petitions involve complex and disputed questions of fact
incapable of satisfactory adjudication in writ jurisdiction, and the
petitioners ought to be relegated to an appropriate civil suit. It is
further submitted that there exists no legal basis either under
statute or under the Agreements for Sale to determine entitlement
of the petitioner societies to land by equating the same with their
built-up area or by placing reliance upon the layout plan of the
year 2012. According to respondent No. 3, such methodology is
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arbitrary and unsustainable.
21. Learned Counsel submits that all constructions carried out
on the subject property are duly authorized and strictly in
accordance with sanctioned plans. It is contended that no society
has any vested right to claim conveyance of land equivalent to its
constructed or built-up area. He further submits that under the
applicable Development Control Regulations and the Unified
Development Control and Promotion Regulations, additional
construction is permissible by utilization of Transferable
Development Rights and other permissible loadings on plot
potential, obtained upon payment of substantial premia and
charges to public authorities.
22. It is submitted that such lawful utilization of TDR and
loading of FSI permanently enhances the development potential of
the land. Consequently, any claim for conveyance must be
considered with reference to such expanded plot potential.
Learned Counsel further submits that keeping in view the
limitations arising under Sections 11(3) to 11(5) of MOFA, the
Housing Department has issued the Government Resolution dated
22 June 2018 to guide the Competent Authority in such matters. It
is lastly submitted that under Clause C(vi)(2) of the said
Government Resolution, where TDR has been utilized, conveyance
may be confined to the plinth area and land appurtenant thereto,
while preserving rights of the societies to use common areas within
the larger layout. On the strength of the aforesaid submissions,
learned Counsel contends that the present petitions are devoid of
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merit, suffer from non-joinder of necessary parties, involve
seriously disputed questions of fact, and are therefore liable to be
dismissed.
REASONS AND ANALYSIS:
23. I have carefully considered the submissions advanced by the
learned Senior Advocate appearing for the petitioners, the learned
Advocate appearing for respondent No.3, and the entire material
produced on record by both sides. I have also examined in detail
the certificates issued by Articulate 360 dated 03.04.2026,
together with the two certificates issued by 10 Folds Architects &
Consultants dated 02.03.2026 concerning Buildings M1 to M5 and
M6 to M10. The real issue is whether the project in question was
developed by utilizing TDR or some additional development
potential, and if such additional benefit was in fact used, then
what is the correct area required to be conveyed in favour of the
petitioner societies while granting deemed conveyance.
24. The petitioners contend that respondent No.3 has delayed
conveyance for years and has failed to transfer the land together
with the structures, though such obligation arises both under the
agreements for sale and under the provisions of MOFA. Petitioners
rely upon the larger layout, the construction plans, and the
architect’s certificate to contend that several buildings were raised
as part of one scheme. Therefore the land beneath the buildings,
the appurtenant portions attached to each structure, and the
common open spaces and amenities are required to be conveyed in
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a proportionate manner. They are parts of that development.
Hence, their rights must be determined with regard to the layout
and the common facilities.
25. Respondent No.3 submits that the layout consists of
numerous buildings, some completed and some still under
construction, and therefore any conveyance in favour of the
petitioners may prejudice the rights of other societies and future
occupants. It is urged that if the claim of the petitioners is
accepted, it may overlap with existing structures, internal roads,
driveways, recreation grounds and utility spaces. This submission
cannot be brushed aside because the record do show a layout
having phased development. However, this argument establishes
that the Court should not direct a partition destructive of the
remaining layout. It does not answer the material question, namely
what undivided rights the petitioner societies are entitled to
receive under MOFA read with the Government Resolution.
26. The important document relied upon by the petitioners is the
Architect certificate issued by Articulate 360. That certificate
shows the original plot area of 58,267.79 sq. mtrs. It deducts road
setbacks, portions not in possession, and areas earmarked or
handed over for reservation and amenity purposes. After these
deductions, the net plot area is shown as 56,296.16 sq. mtrs. The
certificate then takes into account area required to be handed over
for TDR permission, recreational ground and amenity obligations,
and arrives at a balance area of 46,303.96 sq. mtrs. It thereafter
mentions total area considered for FSI as 50,427.82 sq. mtrs. and
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total proposed built up area as 49,687.105 sq. mtrs. These figures
indicate a project involving deductions, reservations, amenities,
layout obligations, and enhancement of development loading. On
plain reading, it appears that the project availed additional
development potential beyond land coverage. Hence, the
submission that TDR or some equivalent additional FSI component
was utilized gets support.
27. The same certificate works out the proportionate share of the
ten petitioner buildings. It states that the share in BUA area of the
other building groups comes to 39,834.45 sq. mtrs., representing
80.17 percent, whereas the conveyable share of Buildings M1 to
M10 comes to 9,852.655 sq. mtrs., representing 19.83 percent.
The petitioners rely upon this percentage to claim proportionate
rights in the balance plot area and common areas. This
computation proceeds from built up area ratio within the
sanctioned layout. Once the Government Resolution provides a
rule for TDR cases, the BUA ratio can assist in determining
common undivided share, but cannot convert itself into a
demarcated parcel of land.
28. The two certificates issued by 10 Folds Architects also
deserve attention. One pertains to Building M1 to M5 and the
other to Building M6 to M10. In the certificate for M1 to M5, the
plinth area is shown as 141.545 sq. mtrs. and the appurtenant area
as 137.635 sq. mtrs. It is mentioned that such appurtenant area
excludes roads, driveways, parking spaces, recreational grounds
and other common areas. In the certificate for M6 to M10, the
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plinth area is stated as 141.060 sq. mtrs. and the appurtenant area
as 86.630 sq. mtrs., excluding common portions. These certificates
identify plinth and adjoining usable area for the representative
building types in the petitioner group. They provide a basis for
determining conveyable area where the Government Resolution
mandates plinth and appurtenant method.
29. Having regard to Clause 2(C) of the Government Resolution
dated 22 June 2018, the legal position becomes clearer. Clause
2(C)(vi)(2) states that where TDR is utilized in a layout, deemed
conveyance should be made according to plinth and appurtenant
area. Clause 2(C)(6) further provides that while mentioning
common easements in the deemed conveyance order and
certificate, it should be recorded that the applicant society has
undivided rights in common easements in proportion to the
construction of the building of such society. These two clauses
must be read together. Harmonious reading requires that in a TDR
case, the society receives two components. First,plinth plus
appurtenant area. Second, undivided proportionate rights in
common roads, services, open spaces and easements.
30. Proceeding on that basis, the computation can be made. For
each M1 type building, the conveyable area is the total of plinth
area 141.545 sq. mtrs. and appurtenant area 137.635 sq. mtrs.,
aggregating 279.180 sq. mtrs. There are five such buildings,
namely M1 to M5. Hence, the total for M1 to M5 comes to
1,395.900 sq. mtrs. For each M6 type building, the plinth area is
141.060 sq. mtrs. and the appurtenant area is 86.630 sq. mtrs.,
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aggregating 227.690 sq. mtrs. There are five such buildings,
namely M6 to M10. Hence, the total for M6 to M10 comes to
1,138.450 sq. mtrs. Thus, the conveyable area for all ten petitioner
societies works out to 2,534.350 sq. mtrs.
31. The undivided common share must be separately
determined. The petitioners’ architect has worked out the share of
the ten petitioner buildings as 9,852.655 sq. mtrs. out of total BUA
of 49,687.105 sq. mtrs. This gives a proportion of 19.8296 percent,
rounded as 19.83 percent. This ratio is derived from construction
figures and there is no contrary computation placed on record. If
the recreational ground area is taken at 6,945.59 sq. mtrs., the
petitioner societies’ undivided share therein comes to 1,377.268
sq. mtrs. If the balance plot area after deductions is taken at
39,358.37 sq. mtrs., their undivided proportion works out to
7,804.53 sq. mtrs. It must be understood that these are not
exclusive portions. They represent proportionate title and user
rights in common layout land and facilities.
32. The submission of respondent No.3 that the petitioners
cannot claim anything beyond plinth area cannot be accepted. If
that contention is accepted absolutely, Clause 2(C)(6) would
become meaningless. A cooperative society cannot be left owning
only a footprint of construction while having no access to roads,
passages, services or common open areas. At the same time, the
petitioners cannot insist on a carving out of separate plots in
disregard of other buildings and common facilities. The balance
lies in granting plinth plus appurtenant area and undivided
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proportionate rights in common amenities.
33. For all these reasons, I hold that the project involved use of
additional development potential and therefore falls within Clause
2(C)(vi)(2) and Clause 2(C)(6) of the Government Resolution
dated 22 June 2018. Consequently, deemed conveyance in favour
of the petitioner societies must be worked out on the basis of
plinth area plus appurtenant area, and not merely on bare built up
area formula. The exact exclusive conveyable area comes to
2,534.350 sq. mtrs., consisting of 1,395.900 sq. mtrs. for Buildings
M1 to M5 and 1,138.450 sq. mtrs. for Buildings M6 to M10. In
addition thereto, the petitioner societies are entitled to undivided
common share of 19.8296 percent in common areas, open spaces,
internal roads, amenities, easements and related facilities of the
larger layout, including corresponding proportionate share in
recreational ground and other common portions as already worked
out. In my view, this gives full and fair effect to the documentary
record, the statutory framework and the Government Resolution,
and no contrary computation survives on the facts of the present
matter.
34. In view of the foregoing discussion and for the reasons
recorded hereinabove, the following order is passed:
(a) The writ petitions succeed in part;
(b) It is declared that the petitioner societies are entitled to
deemed conveyance in terms of Clause 2(C)(vi)(2) and
Clause 2(C)(6) of the Government Resolution dated 22 June
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2018;
(c) The impugned order, to the extent it denies conveyance
of land appurtenant to the buildings and proportionate
undivided rights in common areas, stands modified
accordingly;
(d) Respondent No.2, Competent Authority, shall within a
period of eight weeks from the date of uploading of this
order, issue fresh deemed conveyance certificate and execute
/ cause execution of conveyance deed in favour of the
following societies with exclusive area and corresponding
undivided common rights as set out hereinbelow;
Exclusive Conveyable Area
M1. Om Shri CHS
279.180 sq. mtrs.
M2. Sai Chaya CHS
279.180 sq. mtrs.
M3. Siddhivinayak CHS
279.180 sq. mtrs.
M4. Om Ved CHS
279.180 sq. mtrs.
M5. Ganesh Krupa CHS
279.180 sq. mtrs.
M6. Sudarshan CHS
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227.690 sq. mtrs.
M7. Rajmata CHS
227.690 sq. mtrs.
M8. Chintamani CHS
227.690 sq. mtrs.
M9. Nilkanth CHS
227.690 sq. mtrs.
M10. Shree Swami Samarth CHS
227.690 sq. mtrs.
(e) In addition to the above exclusive area, each of the
aforesaid societies shall have undivided right, title and
interest in the common roads, internal passages, open
spaces, recreational grounds, common amenities, services,
easements, and facilities in the larger layout;
(f) The undivided common share of the ten petitioner
societies collectively is fixed at 19.8296 percent of the
common layout areas and facilities;
(g) For administrative convenience, the inter se proportion
of common rights amongst the petitioner societies shall be as
follows:
(i) M1 to M5 societies. Each society shall hold
2.7938 percent undivided share in the common layout;
(ii) M6 to M10 societies. Each society shall hold
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1.1721 percent undivided share in the common layout;
(h) The conveyance deed shall specifically record that:
(i) exclusive area mentioned in clause (d) is by
plinth plus appurtenant basis;
(ii) common rights mentioned in clauses (e), (f) and
(g) are undivided and not by physical partition;
(iii) rights of access, ingress, egress, user of roads,
open spaces, amenities and utilities shall remain
available in accordance with sanctioned layout plans.
(i) Mutation entries, if required, shall be carried out by the
concerned authority on the basis of the conveyance deed and
certificate issued pursuant to this order.
(j) Rule is made absolute in the above terms. No order as
to costs.
(AMIT BORKAR, J.)
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