Upvan Woodlands Co Op. Hsg. Soc. Ltd vs M/S. Upvan Developers And Ors
- Court
- Bombay High Court
2026:BHC-AS:23829
Neeta Sawant WP-11551 OF 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11551 OF 2025
Upvan Woodlands Co-operative ...Petitioner
Housing Society Limited
V/s.
1. M/s. Upvan Developers
2. M/s. Govindram Brothers Pvt.
Ltd.
3. M/s. Balrampur Chini Mills
Limited
4. The Competent Authority &
District Deputy Registrar, Co-
operative Societies, Mumbai City
5. The State of Maharashtra
through Secretary, Housing
Department.
...Respondents
________________
Ms. Tanaya Patankar with Mr. Devang Shah and Mr. Aditya Kanchan i/b
Lakshyavedhi Legal for the Petitioners.
Mr. Karl Tamboly with Mr. Samit Shukla, Ms. Delnavaz Patel and
for Respondent No.1.
Ms. Sayali Diwadkar i/b Trilegal
Mr. Nimesh Bhatt for Respondent No.2.
Mr. P.G. Sawant, AGP for Respondent Nos.4 and 5/State.
________________
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CORAM: SANDEEP V. MARNE, J.
Reserved On: 9 June 2026.
Pronounced On: 15 June 2026.
Judgment:
1) Rule . Rule is made returnable forthwith. With the consent of
the learned counsel appearing for parties, the Petition is taken up for
final disposal.
2) The Petitioner-Society has filed the present Petition under
Article 227 of the Constitution of India challenging Order dated 20 May
2025 passed by the District Deputy Registrar, Co-operative Societies,
Mumbai City-4 and Competent Authority ( Competent Authority )
rejecting its Application No.222 of 2024 for deemed conveyance.
3) Briefly stated, facts of the case are that Respondent No.3
was the original owner in respect of larger property comprising of 5 plots
bearing Plot Nos.145, 146, 147, 148 and 149 at Village Chinchavali and
Dindoshi, Taluka Borivali, collectively admeasuring 4683.80 sq. mtrs. By
Agreement for Sale dated 18 April 1978, Respondent No.3 transferred its
right, title and interest in the larger property in favour of Respondent
No.2. Respondent No.2 got the layout/sub-division in respect of five plots
approved from the Municipal Corporation of Greater Mumbai ( MCGM ).
Respondent No.2 entered into partnership in the name and style of
Respondent No.1 under a Deed of Partnership dated 18 July 1989 and
subjected the larger property to the business of partnership.
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4) This is how Respondent No.1 became the developer/owner
in respect of the concerned land. It appears that there were bungalows in
each of the five plots. Respondent No.1 engaged with the occupants of
three out of the five bungalows and accordingly got a mini layout
approved on 6 July 2007. As per the sanctioned layout Respondent No.1
has constructed building consisting of three levels of parking and stilt
plus 15 upper and two refugee floors. The building is named 'Upvan
Woodlands'. Occupation Certificate in respect of the building was granted
on 6 May 2017. The building is constructed on undivided portion of the
land admeasuring 2799.90 sq. mtrs. forming part of the larger land.
Respondent No.1 sold various units in the building to the various plot
purchasers by executing agreement with them under provisions of
Section 4 of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963
( MOFA ). The land admeasuring 2799.90 sq. mtrs. forming part of the
larger land is the subject matter of MOFA agreements executed with the
flat purchasers.
5) The flat purchasers of the building Upvan Woodland have
formed the Petitioner-Society, which came to be registered on 11 July
2018. The Society demanded conveyance of the land from Respondent
No.1. By letter dated 1 September 2023, Respondent No.1 shared draft
Deed of Conveyance for conveying the portion of land admeasuring
2799.90 sq. mtrs. in favour of the Petitioner-Society. However,
Respondent No.1 showed willingness to execute conveyance only after
completion of entire layout development. Since Respondent No.1 showed
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willingness to execute conveyance only after completion of the entire
layout development, Petitioner-Society filed an Application before the
Competent Authority seeking unilateral deemed conveyance of the land
admeasuring 2799.90 sq. mtrs. The Respondent No.1 opposed the
Application taking the stand that the Application was premature and
that the conveyance could be executed only after completion of
development of layout in all respects.
6) The Competent Authority has rejected Petitioner’s
Application for deemed conveyance by order dated 20 May 2025 on the
ground that Petitioner-Society’s building has already been benefited
from the global FSI of the layout and granting conveyance at this
juncture would wholly prejudice the contractual rights of Respondent
No.1. The Competent Authority has concluded that Petitioner-Society
could not establish that Respondent No.1 has failed to comply with
Section 11 of the MOFA. Accordingly, Petitioner-Society’s Application for
deemed conveyance is rejected by Order dated 20 May 2025, which is
subject matter of challenge in the present Petition.
7) Ms. Patankar, the learned counsel appearing for Petitioner-
Society has submitted that the Competent Authority has erroneously
rejected Petitioner’s Application for deemed conveyance on the ground
of incomplete development of the entire layout. She submits that the
Competent Authority has misread the judgment of this Court in
Marathon Era Co-operative Housing Society Limited vs. The Competent
Authority & District Deputy Registrar, Co-operative Societies and
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1
Others to mean as if the application for deemed conveyance cannot be
entertained and granted without completion of lay-out development,
whereas the judgment holds exactly to the contrary. She also relies on
the judgment of this Court in Lok Housing and Construction Limited vs.
2
State of Maharashtra and Others in support of her contention that the
Competent Authority can grant conveyance even before completion of
layout development. That the Competent Authority has erroneously
considered letter dated 1 September 2023 of the Respondent No.1 for
recording finding of absence of failure. That the said letter actually
rejects the demand for conveyance raising the plea that conveyance can
be granted only after completion of layout development.
8) Ms. Patankar invites my attention to the MOFA Agreement
in support of her contention that the Society’s building is constructed in
respect of land admeasuring 2799.90 sq. mtrs. and that therefore the
Society is entitled to have conveyance of the said land. She also relies
upon Architect’s Certificate dated 25 September 2024. She submits that
since there is no dispute about the area of land to be conveyed, this Court
can direct Competent Authority to issue certificate of deemed
conveyance rather than remanding the application for fresh adjudication
and in support, she relies on judgment of this Court in Gala Complex
Premises Co-operative Society Limited vs. Gala Wood Works and
3
Others . She further relies on judgment of this Court in Mahanagar
Realty through its Partner vs. Ganga Ishanya Co-operative Housing
1 MANU/MH/2473/2024
2 2025 SCC OnLine Bom 711
3 2026 SCC OnLine Bom 2052
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4
Society Ltd. in support of her contention that it is necessary to freeze
the FSI as per the sanction plan after construction of building in a lay-
out for the purpose of grant of deemed conveyance. She prays for setting
aside the order of the Competent Authority and for issuing direction for
conveyance of land admeasuring 2799.90 sq. mtrs. in favour of the
Petitioner-Society.
9)
Mr. Tamboly, the learned counsel appearing for Respondent
No.1 opposes the Petition submitting that the Competent Authority has
rightly rejected the application of Petitioner-Society. That Respondent
No.1 has never rejected demand of Petitioner-Society for conveyance.
That even before the Competent Authority, Respondent No.1 had shown
willingness to grant conveyance upon completion of the entire lay-out
development. He relies on Clause 12 of the MOFA Agreement in support
of his contention that the parties have contractually agreed for execution
of conveyance only after entire development of lay-out is complete. He
submits that Competent Authority cannot ignore contractual clauses
while deciding application under Section 11 of the MOFA. He relies on
judgment of this Court in Neelkanth Heights Co-operative Housing
Societies Association Limited & Ors. vs. Abhinav Real Estate Private
5
Limited & Ors. in support of his contention that Competent Authority
cannot ignore contractual clause while deciding Application under
Section 11 of the MOFA. He also relies on the letter dated 1 September
2023 in which also Respondent No.1 had shown willingness to execute
conveyance by sharing draft deed. He submits that Respondent No.1 is
4 2026 SCC OnLine Bom 1445
5 Writ Petition No.165 of 2025, decided on 9 May 2025.
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yet to complete development on remaining portion of the land. That
plans for remaining portion of land are already sanctioned. That
Respondent No.1 has not utilized any portion of FSI flowing out of the
land earmarked for Petitioner-Society. That Respondent No.1 is carrying
out development on remaining portion of the land by constructing PTCs
for MCGM on another plot of land. That therefore completing balance
construction in the layout does not affect the rights of Petitioner-Society
in any manner. Mr. Tamboly further submits that Competent Authority
has arrived at a correct finding that Society’s Application was premature.
That Society has expressly agreed for conveyance only after completion
of layout development.
10) Mr. Tamboly further submits that granting conveyance to
the Petitioner-Society in respect of portion of land would grossly
prejudice rights of the Respondent No.1 to complete layout development.
He relies on judgment of this Court in ACME Enterprises & Anr. vs.
6
Deputy Registrar, Co-operative Societies & Ors. in support of his
contention that Petitioner-Society cannot question construction on
balance portion of the land by seeking premature conveyance of part of
the land. Mr. Tamboly submits that this Court can specify a time line for
completion of balance lay-out development which would allay the fear of
an indefinite delay in conveyance of land. He submits that Occupation
Certificate in respect of Petitioner’s building is received only in 2017. He
therefore prays for dismissal of the Petition submitting that Respondent
No.1 would voluntarily execute conveyance in favour of Petitioner-
6 IA No.4859 of 2025 in Suit No.151 of 2025, decided on 4 November 2025.
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Society in accordance with draft shared vide letter dated 1 September
2023.
11) Rival contentions of the parties now fall for my
consideration.
12) The Competent Authority has rejected Petitioner-Society’s
application for deemed conveyance essentially on the ground that the
entire lay out development is still incomplete. The application is held to
be premature. The Competent Authority has held that the Petitioner
could not establish a failure by Respondent No.1-Developer to comply
with the provisions of Section 11 of MOFA as the agreed time line for
conveyance has not yet elapsed. While dismissing Petitioner’s
application for deemed conveyance, the Competent Authority has
directed Respondent No.1 to adhere to its obligations under the
Agreement for Sale by executing conveyance upon completion of the
layout in accordance with MOFA and applicable regulations.
13) The contractual stipulations for grant of conveyance are
incorporated in Clause-12 of the Agreement for Sale executed with the
flat purchasers, which read thus:
12. The Developers have informed the Purchasers that the development
of said Building is as part of Layout for amalgamated development of 5
(five) Plots on basis of 2.00 FSI as now permissible as well as and
including for any increased FSI/TDR or other benefits as may become
permissible in future till all Flats/Premises and other areas [including
but not confined to the limited common areas, parking spaces forming
part of relevant Flats allotted, any utility areas or independent areas for
exclusive use with any Flats in the Project, pocket terraces and other
areas etc. of any nomenclature as are attached to and/or allotted along
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with the concerned Flats and constructed as per sanctioned plans for
the Project as are or may be approved by MCGM from time to time] in
entire Project so contemplated and developed are sold and that the area
from and out of said 5 Plots including under the Old bungalows as are
now pending demolition as is not now utilized for development forms
part of Layout to be so developed and the Purchasers are aware of and
consent irrevocably to development by Developers and/or their
nominee/s or assign/s etc. of one or more building/s consuming residual
FSI/TDR and other benefits on above basis after FSI/TDR used in said
Building being developed at present and offered for sale, on such
balance area out of the Layout and such portion adm 1883.90 sq.mtrs
[Plot Nos. 148 & 149] is identified on plan of Layout of said 5(Five)
plots.
The Purchaser is informed and confirm that the Conveyance of
said Building with FSI/TDR as consumed therein shall be executed
only after the entire Project and development of Layout as
aforesaid is completed in all respect and Flats with other areas as
explained above in all Buildings within Layout so developed are
sold and till then the Developers or Owners are not and shall not
be deemed liable to execute any Conveyance.
The Purchaser is informed and confirm that the Conveyance of
Common RG areas on the Ground level or Podium Level and/or any
Common Facility/Amenity such as Swimming Pool/s, Health Club etc.
shall be conveyed jointly to all Society/Owners of Building so developed
within said Layout and in case for convenience such areas are conveyed
to any one of the Society or Owner of Building so developed then such
Society or Owner of Building so developed shall in all respect of such
areas shall be holding the same ONLY as Trustee for benefits of all such
Society/Owners of Building so developed with said Layout and the
maintenance and upkeep and repairs etc. of such areas [in whatsoever
manner conveyed] shall be borne and paid on prorate basis from date of
use by respective Society/Owner based on prorate share determined on
basis of FSI/TDR etc. consumed in their Building vis a vis the Total FSI
consumed from time to time till date of commencement of such use by
any Society/Owner and ultimately within Layout so developed.
The Purchaser is informed and confirm that after entire Layout as
envisaged and contemplated above is over and Conveyance of entire
Land within Layout is duly conveyed thereafter to concerned
Society/Owner within Layout as aforesaid, the future increases of
benefits in FSI/TDR etc. over and above FSI/TDR finally consumed to
entire Layout, shall be accrued on prorate basis to all Society/Owner
within Layout completed as abovesaid and such prorate
share/entitlement shall be determined on basis of FSI/TDR etc.
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consumed in their Building vis a vis the Total FSI consumed ultimately
within Layout so developed.
(emphasis added)
14) Before the Competent Authority, Respondent No.1 relied
upon the above emphasized portion of Clause-12 of the Agreement for
Sale under which parties had agreed that conveyance of the building with
FSI/TDR is to be executed only after the entire project and development
of layout is complete in all respects and after flats with other areas in all
buildings within the layout are sold. Relying on Clause 12, Respondent
No.1 contended before the Competent Authority that till completion of
entire layout development, it is not contractually obliged to execute
conveyance in favour of the Petitioner-Society. With this plea,
Respondent No.1 filed maintainability application dated 7 November
2024 before the Competent Authority in addition to its written
statement.
15) The Competent Authority is persuaded to accept the
contention raised by Respondent No.1. After noting the rival contentions
of Petitioner and Respondent No.1, the Competent Authority relied upon
judgment of this Court in Marathon Era (supra) and held in para-26 of
the order as under:
26. The Marathon Era judgment is pivotal, as it addresses the unique
challenges of multi-structural layout developments. The Hon'ble
Bombay High Court held that in such layouts, FSI is pooled across the
entire land, and the built-up area of a structure is not tied to its plot-
specific FSI. The court observed:
"There is an assessment of the maximum buildability of the entire
layout taken as a whole... The built up area that a structure consumes is
no longer tied to any particular, defined or known plot area."
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The court further noted that premature conveyance in such cases risks
an unequal distribution of FSI, as the internal allocation of FSI is
determined by the promoter and is unrelated to individual plot areas.
The judgment underscores that Rule 9 applies only when no
conveyance timeline is agreed, and that the terms of the Agreement for
Sale govern the promoter's obligation.
Applying this principle, the Agreement for Sale in the present case
explicitly stipulates, through Recital H and Clause 12, that conveyance
shall be executed only upon completion of the entire layout. The
Applicant's contention that the Agreement is silent on the timeline is
untenable, as Clause 12 clearly sets out the condition precedent of
layout completion. The Applicant's reliance on Rule 9 is therefore
misplaced, as the agreed timeline prevails, as held in Marathon Era and
reaffirmed in Venus Vasant Valley. The first opponent's evidence of
tenancy settlements and ongoing efforts to obtain approvals further
corroborates that the layout development is in progress, rendering the
application premature.
16) This is how the Competent Authority has held that the time
line set out in Clause 12 of the Agreement for Sale would bind the parties
and reliance of the Petitioner on Rule 9 of Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management and
Transfer) Rules, 1964 (MOFA Rules) is misplaced. In short, the
Competent Authority has held that the time line prescribed in
contractual clause of the Agreement for Sale would prevail over the time
line stipulated in Rule 9 of MOFA Rules. This finding of the Competent
Authority is contrary to the settled position of law that the timeline
prescribed in Rule 9 would prevail over the contractual timeline in the
Agreement for Sale. The issue is no more res-integra and is covered by
judgment of Single Judge of this Court in Lok Housing and Construction
Ltd. (supra) in which this Court interpreted the term ‘period’ appearing
in Rule 9 and held that the same connotes a fixed, determinable and
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reasonable span of time. This Court held that any clause in the
Agreement for Sale that attempts to override or nullify the statutory
obligation under Rule 9 must be declared void to that extent, being
inconsistent with law. This Court held in paras-17 to 24 of the judgment
as under:
17. The submission advanced on behalf of the petitioner, seeking to
justify delay in execution of conveyance by relying upon contractual
clauses 25 and 28 to contend that conveyance in favour of society can
be executed only after completion of the entire development scheme,
cannot be accepted in the face of the clear statutory mandate contained
in Rule 9 of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Rules,
1964 (hereinafter referred to as "the MOFA Rules"). Rule 9 leaves no
room for ambiguity and categorically prescribes the time frame within
which a promoter is required to convey title to the co-operative housing
society or association of flat purchasers. The Rule provides that, unless
a specific period is mutually agreed upon between the parties, the
promoter shall execute the conveyance deed within four months from
the date of registration of the society.
18. The purpose of Rule 9 must be understood in light of the statutory
scheme of MOFA, particularly Section 11, which casts a positive
obligation upon the promoter to execute the conveyance of title in
favour of the organization of flat purchasers. The Rule is not merely
procedural in nature but is a substantive safeguard against indefinite
and deliberate delay on the part of the promoter. The four-month
period is a codified timeline intended to operationalize the legislative
objective of ensuring that flat purchasers are not left in a state of
uncertainty regarding title to the land and building in which their flats
are situated. This obligation cannot be evaded on the basis of private
contractual stipulations that seek to indefinitely defer the promoter’s
duty, nor can it be defeated by reference to alleged defaults by
individual purchasers. MOFA being a social welfare legislation intended
to protect the interests of flat purchasers must be interpreted in a
purposive and beneficial manner. It is settled law that in interpreting
such welfare statutes, the Court must give precedence to the legislative
intent over the literal terms of any private agreement which runs
counter to such intent.
19. Of particular significance is the use of the word “period” in Rule 9 of
the MOFA Rules. The legislature has deliberately chosen this word to
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signify a determinate, fixed and measurable segment of time. The
ordinary and grammatical meaning of “period” is a definite span of
time, not subject to vague or indefinite conditions. This interpretation
is consistent with the well-recognized principles of statutory
interpretation, whereby words used in subordinate legislation are to be
given their natural and popular meaning unless the context requires
otherwise.
20. In the present case, the statutory language is clear and
unambiguous. It therefore warrants a plain and literal interpretation.
The term “period” in Rule 9 cannot be interpreted to mean an
indeterminate, future event-based timeline such as "completion of the
entire development scheme". Such an interpretation would amount to
substituting a definite and enforceable timeframe with a contingent
and uncertain condition, thereby diluting the efficacy of Rule 9. Courts
are not permitted to rewrite statutory provisions under the guise of
interpretation, especially when doing so would defeat the purpose and
object of the legislation.
21. In the face of statutory obligations, courts are empowered and
indeed duty-bound to disregard any such clause that seeks to dilute,
defer or defeat the legislative scheme. To uphold such a clause would be
to allow the promoter to continue holding title in perpetuity under the
guise of incomplete obligations, which the legislature clearly intended
to avoid.
22. Further, the Court finds that any interpretation of the word “period”
that allows it to be supplanted by the occurrence of a future uncertain
event would defeat the legislative intent of providing a time-bound
mechanism for conveyance. MOFA was enacted precisely to remedy the
imbalance in bargaining power between promoters and flat purchasers.
To interpret Rule 9 in a manner that enables the promoter to defer
conveyance indefinitely would amount to restoring the very imbalance
which MOFA seeks to correct.
23. Therefore, this Court has no hesitation in holding that the
expression “period” as used in Rule 9 must necessarily mean a fixed,
determinable and reasonable span of time. It cannot be equated with
any open-ended or contingent condition. Any clause in the agreement
for sale that attempts to override or nullify this statutory obligation
must be declared void to that extent, being inconsistent with the law.
24. In view of the aforesaid discussion, this Court is of the considered
opinion that any contractual clause, including Clause 25 of the
agreement in the present case, which seeks to defer the promoter’s
obligation to execute conveyance until completion of project, is in
direct conflict with Rule 9 of the MOFA Rules. Such a clause cannot take
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precedence over a statutory duty. Where the majority of purchasers
have taken possession and formed a registered society, and have
complied with their obligations, the promoter cannot avoid conveyance
by raising inter se disputes or conditions involving other purchasers. A
condition based on a future uncertain event — neither time-bound nor
within the control of the society — cannot be treated as a valid “period”
under Rule 9.
17) Thus, Clause 12 in the Agreement for Sale cannot take
precedence over the period specified in Rule 9 of the MOFA Rules. The
promoter therefore cannot avoid conveyance on the ground that the
timeline stipulated in contractual clause is yet to arrive even though the
period specified in Rule 9 of MOFA Rules has already elapsed.
18) Similar issue fell for consideration before this Court in
ACME Enterprises (supra) in which this Court took up for consideration
the issue whether conveyance could be granted before completion of the
entire layout development. In ACME Enterprises reliance was placed on
judgment of the Apex Court in Jayantilal Investments Versus.
7
Madhuvihar Co-op Housing Society and ors. in support of the
contention that conveyance can never be granted till completion of all
buildings in the layout. Reliance was placed on observation made by the
Apex Court in para-20 of the judgment ' the answer to the above question
will decide whether the time to execute the conveyance has arrived or not ' in
support of the contention that the time specified in the Agreement is
sacrosanct. This Court however held in ACME Enterprises that the said
observation made in the peculiar facts of the case in Jayantilal
Investments
(supra) does not constitute an authority for proposition that
conveyance cannot be granted until the time specified in Agreement for
7 (2007) 9 SCC 220
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Sale has arrived. In ACME Enterprises this Court also took note of
Government Resolution dated 22 June 2018 as well as ratio of the
judgment in Lok Housing (supra) and held in paras-34 to 40 as under :
WHETHER CONVEYANCE CAN BE GRANTED BEFORE COMPLETION
OF ENTIRE LAYOUT DEVELOPMENT?
34 . xxxx
35. In support of the contention that conveyance cannot be granted till
completion of all buildings in the layout, the Developer has relied on
judgment of the Apex Court in Jayantilal Investments (supra) in which
it is held in paragraph 20 as under:
20. In the light of what is stated above, the question which needs
to be examined in the present case is whether this case falls
within the ambit of amended Section 7(1)(ii) or whether it falls
within the ambit of Section 7A of MOFA. As stated above, under
Section 7(1) after the lay out plans and specifications of the
building, as approved by the competent authority, are disclosed
to the flat takers, the promoter shall not make any other
alterations or additions in the structure of the building without
the prior consent of the flat takers. This is where the problem
lies. In the impugned judgment, the High Court has failed to
examine the question as to whether the project undertaken in
1985 by the appellant herein was in respect of construction of
additional buildings or whether the project in the lay out plan of
1985 consisted of one building with 7 wings. The promoter has
kept the requisite percentage of land open as recreation ground/
open space. Relocation of the tennis court cannot be faulted.
The question which the High Court should have examined is:
whether the project in question consists of 7 independent
buildings or whether it is one building with 7 wings? The answer
to the above question will decide the applicability or non-
applicability of Section 7(1)(ii) of MOFA, as amended. The
answer to the above question will decide whether the time
to execute the conveyance has arrived or not. This will also
require explanation from the competent authority, namely,
Executive Engineer, "R" South Ward, Kandivali, Mumbai-400067
(Respondent No. 8 herein). In the dates and events submitted by
the appellant-promoter, there is a reference to the permission
granted by ULC authorities dated 16.11.1984 which states that
the owner/developer shall construct a building with 7 wings.
One needs to examine the application made by the promoter
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when he submitted the lay out plan in 1985. If it is the building
with 7 wings intended to be constructed in terms of the lay out
plan then the High Court is also required to consider the effect
of the judgment in the case of Ravindra Mutneja and Ors. v.
Bhavan Corporation and Ors. 2003 (5) BomCR 695 in which the
learned single Judge has held that if a building is put up as a
wing of an existing building, it cannot be constructed without
the prior permission of the flat takers. In that connection, the
High Court shall also consider Permission dated 16.11.1984
under Section 21(1) of ULC Act, application made to the
competent authority when initial lay out plan was sanctioned,
applications for amendments to lay out plans made from time to
time and also agreements between promoter and flat takers.
36. In my view, the observations made by the Apex Court in
Jayantilal Investments (supra) about the time to execute
conveyance cannot be read to mean that conveyance cannot be
executed till the entire disclosed construction is carried out in a
layout. In paragraph 20 of the judgment, the Apex Court has dealt with
the situation where this Court had not decided the issue as to whether
the Developer had undertaken construction of additional buildings or
one building with 7 wings. The Apex Court therefore remanded
proceedings for decision of the issue as to whether the development
comprised of construction of 7 independent buildings on one building
with 7 wings. The Apex Court held that answer to the said question
would decide applicability or non-applicability of Section 7(1)(ii) of the
MOFA and answer to the above question would also decide whether
time to execute conveyance has arrived or not. It is well settled
principle of law that a judgment is an authority for what it decides and
not what can be logically deduced therefrom. [SEE: Commr. of Customs
(Port) v. Toyota Kirloskar Motor (P) Ltd. 7 and Secunderabad Club v. CIT
8 ]. Therefore, a stray observation by the Apex Court in paragraph 20 of
the judgment about time for execution of conveyance, made in the
peculiar facts that case, cannot be read to mean as if the judgment in
Jayantilal Investments is an authority on proposition that conveyance
cannot be granted until all the disclosed construction in the layout is
complete.
37 . On the contrary, this Court has taken a consistent view that in cases
where promoters fail to perform their statutory obligation of
conveyance of land under Section 11 of the MOFA on the ground of
non-completion of layout development, conveyance of proportionate
land in the layout can be granted in favour of societies whose buildings
are complete. With a view to prevent mischief of developers not
conveying land on account of incorporation of a covenant that land
would be conveyed only in favour of federation of societies upon
completion of construction of all buildings in the layout, this Court has
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judicially recognised the principle of conveyance of part of the land in
the layout in favour of a society or societies even during currency of
development of layout. The principle is also incorporated in the
guidelines issued to the Competent Authorities for deciding
applications for deemed conveyance vide Government Resolution (GR)
dated 22 June 2018 issued by the Cooperation Department of
Government of Maharashtra. The relevant paragraph of the GR reads
thus:
एकाभूखंडावरअनेकइमारतीअसतीलवप्रत्येकइमारतीचीस्वतंत्रसहकारी
गृहनिननमाणसंस्थाअसेलआणिणणत्यापैकीकाहीइमारतीचेबांधकामअपूण
असल्यास , पूणझालेल्याइमारतीचेमानीवअणिणभहस्तांतरणकरतानाअशा
संस्थेच्याइमारतीच्याबांधकामाच्याप्रमाणातजागेचेक्षेत्रफळ (Proportionate
area) Ground Coverage Plinth area, ,
किंककवा किंककवा तसेचमोकळीजागा
सामुदायिययकसेवासुनिनवधा , रस्तेयांचेवरबांधकामाच्याप्रमाणातअनिनवभक्त
निनहस्सा (Undivided share) वनिनहवाटीचाहक्कद्यावा .
If there are many buildings on one plot and have a separate co-
operative society of each building and if construction of some of
them is incomplete then while making Deemed Conveyance of
completed building, undivided share of occupancy right in the
proportion of construction on the proportionate area of the
construction of the building of such society or ground coverage or
plinth area, similarly open space, common services and facilities,
roads should be given.
38. It is even otherwise a well-recognised principle that when one
society is formed in respect of a building in a layout, conveyance of
proportionate area can be granted in favour of such Society, and it is
not necessary for such society to await completion of construction in
the entire layout. In cities like Mumbai, Pune, etc, developers take a
long time to complete construction of all the buildings in the layout.
Since FSI is a dynamic concept and with the history of increase in the
FSI with passage of time, delay in completion of development in the
layout actually enures to the benefit of the developers. Therefore, many
times, all buildings in the layout are not taken up for construction
simultaneously and a layout is developed in a phased manner. It also
happens that there is increase in the FSI or change in the FSI norms by
the time last building in the layout is taken up for construction. The
developers often encash the opportunity by revising FSI computation in
respect of entire layout and use the additional FSI flowing through the
entire layout land, for construction of last building in the layout. In
order to facilitate milking of additional FSI flowing out of the entire
layout, the developers sometimes deliberately delay conveyance of
proportionate area of land even in respect of completed buildings. To
avoid this mischief, this Court has recognized the principle of
proportionate division and conveyance of land in favour of societies of
constructed buildings and this principle is incorporated in the
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instructions issued by the State Government in the form GR dated 22
June 2018.
39. In Lok Housing and Construction Ltd vs. State of Maharashtra this
Court has rejected the contention that the conveyance of land and
building can be delayed till all buildings in the layout are constructed
and federation is formed. The Court has held in paragraphs 27 to 32 as
under:
xxxx
40. Therefore, the contention raised on behalf of the Developer that
conveyance of land cannot be granted in favour of the Federation till
completion of construction of Building No.1 is stated to be rejected.
(emphasis and underlining added)
19) It must also be observed that the Competent Authority has
misread the ratio of judgment of this Court in Marathon Era (supra). In
fact, in Marathon Era, the Competent Authority had dismissed Society's
application for deemed conveyance by relying on contractual clauses
which provided for conveyance only in favour of a Condominium by
surrendering the entire larger property to the operation of Maharashtra
Apartment Act, 1970 after completion of entire layout development. The
Society in Marathon Era sought conveyance of proportionate share in
the land (56.18%) of the total area of larger property in the layout. This
Court dealt with the issue of need for conveyance even before completion
of the layout development by holding in para-58 of the judgment as
under :
E. THE NEED FOR A CONVEYANCE EVEN BEFORE COMPLETION OF
THE LAYOUT DEVELOPMENT
58. Why this insistence on a conveyance? This is not, in my
understanding of it, an application by a society just because there is an
entitlement in law. After all, what is a conveyance? It is a transfer of
property, and, specifically, land or other immovable property such as a
structure so as to pass a marketable title free from reasonable doubt to
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those who have ‘purchased’ parts of it. Let us understand the structure
of this. A flat purchaser buys only a flat. He does not buy any part of the
land or even the footprint of the building. Along with his fellow flat
purchasers, he brings forth a distinct legal entity — a collective or
cooperative of all flat purchasers with a shared interest. Each owns his
own apartment. Together they have a shared interest in the common
areas of the building and its common facilities but their society, the
entity of each they are members, has an undeniable interest and title in
the structure as a whole as also in the land beneath in it and in the plot
assured in the sale agreement. No individual member can claim
exclusive title to that land or even any particular part of it. But it is a
society that can make that claim. This is of importance to flat
purchasers because it directly affects that asset value. A vital
component of ownership of immovable property is the marketability of
its title. An owner must be able to vend that property and to transfer
and convey title in that which he owns. Without this, her or his
investment is incomplete. She or he does not have sufficient title to
pass. This affects the value of the asset. The reason for these
applications is thus only this: the desire of members to become owners
of that which they paid so handsomely for.
20) In Marathon Era this Court took note of G.R. dated 22 June
2018 and held in paras-73 to 75 of the judgment as under :
H. THE GOVERNMENT RESOLUTION OF 22ND JUNE 2018
73. Acknowledging the difficulties in operating the deemed conveyance
provisions in MOFA, the Government issued a GR on 22nd June 2018,
based on recommendation of a special committee, and superseding all
previous GRs. It was intended to ‘streamline’ the process.
74. There is now a four-stage process. Part A deals with the documents
required. Part C details the procedure to be adopted. While issuing
orders of deemed conveyances, the Competent Authority is to bear in
mind and take into consideration identified issues (Clause C(vi) of the
GR):
1) On a parcel of land, where there are many buildings and every
building has a separate/independent co-operative society and amongst
these buildings, if some of the building’s construction work is
incomplete, then for such Co-operative Society buildings completed
buildings Deemed Conveyance should be done in relation to their
constructed area of the land area (proportionate area) or ground
coverage or plinth area and similarly open area, common service/
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facilities, road, on all of these in relation to the constructed area
undivided share usage entitlement be given.
2) While making Deemed Conveyance in respect of the buildings in the
layout where T.D.R. is utilized, conveyance of such buildings should be
made according to plinth and appurtenant area.
3) If only one society has made such application for Deemed
Conveyance, in a layout when there is more than one society and other
societies are not cooperating in the measurement of the land area, then
the District Dy. Registrar, Cooperative Societies or Competent
Authority, shall suggest that a registered architect from the panel of the
Competent Authority, be appointed, who shall in relation to Applicant
Society’s building constructed area approved plan, present his report on
the Society’s land area.
4) If the developer did not complete the project in expectation of
getting additional F.S.I. or T.D.R. in urban area, then in such cases,
deemed conveyance of the number of flats proposed as per approved
construction plan and such number of flats have already been
constructed, then their deemed conveyance should be effected.
5) On carrying out inspection of the application filed by the society in
prescribed form and the documents submitted along with it, if
application is fulfilled in all respect, then only the Competent Authority
should issue Deemed Conveyance Order and Certificate to the
concerned society. 6) While mentioning common easement/amenities
in the Deemed Conveyance order, certificate and documents, it should
be mentioned therein that the applicant society shall have undivided
rights in the common easements/amenities, in proportion to the
construction of the building of the applicant society. (Emphasis added)
75. Thus, there is now legal basis and sanction for a conveyance of the
kind Mr Khambata commends in a layout development. My findings are
in consonance with and not in derogation of this GR
21) Thus, in Marathon Era, this Court has nowhere held that
contractual timeline specified in the Agreement for Sale must be given
effect to in derogation of the period specified in Rule 9 of MOFA Rules.
On the other hand, this Court granted liberty to the Society in Marathon
Era to file a fresh application for deemed conveyance to be decided in
accordance with the law as set out in the judgment. Thus, the Competent
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Authority has misread the ratio of the judgment in Marathon Era to
mean as if the timeline prescribed in contractual clause will prevail over
the provisions of Rule 9 of MOFA Rules. The judgment does not hold so.
22) Mr. Tamboly has relied upon judgment of this Court in
Neelkanth Heights (supra) in support of his contention that Competent
Authority cannot ignore contractual clauses while deciding application
for deemed conveyance. However, after considering the findings recorded
by this Court in para-36 of the judgment, it is difficult to hold that the
judgment lays down a principle of law that the timeline specified in
contractual clauses must be enforced by ignoring the period statutorily
prescribed in the MOFA Rules. On the other hand, the same learned
Single Judge who has delivered judgment in Neelkanth Heights has held
in Lok Housing that the period specified in Rule 9 of MOFA Rules would
prevail over the timeline specified in contractual clauses of Agreement
for Sale.
23) Yet another factor considered by the Competent Authority
for rejecting the application for deemed conveyance is alleged
willingness shown by Respondent No.1 to convey the land vide letter
dated 1 September 2023. After the Society demanded conveyance of the
land, Respondent No.1 wrote to the Society on 1 September 2023 as
under:
To,
The Chairman/Secretary and Committee Members
Woodlands CHS Ltd.
Upper Govind Nagar, Malad East, Mumbai
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Sub: Draft Conveyance Deed for undivided and indivisible portion out
of the mini layout for Plot Nos. 145 to 149 within Upper Govind Nagar
Layout.
Dear Sir/s,
We refer to your discussion with our office in the matter of execution of
Conveyance Deed in favour of the Society. We are pleased to forward
you herewith the draft of the proposed conveyance deed in accordance
with the Agreement to Sell executed with all the members of your
Society including in particular in consonance with recital J and K of the
Agreement to Sell read with clauses 2, 12, 13, 14, 15, 19(a), (b), (c) etc.
We have to clarify that all the members of the Society have agreed and
have given their informed consent in clause 12 inter-alia as under:
"The Purchaser is informed and confirm that the Conveyance of said
Building with FSI/TDR as consumed therein shall be executed only after
the entire Project and development of Layout as aforesaid is completed
in all respect and Flats with other areas as explained above in all
Buildings within Layout so developed are sold and till then then
Developers or Owners are not and shall not be deemed liable to execute
any Conveyance"
The Draft Conveyance is attached without prejudice to what is stated
hereinabove and agreed by all the members. Your insistence to convey
the undivided portion of land is premature but for showing our
bonafide we are forwarding the draft of the Conveyance Deed that
would be executed when the time for the same arrives.
Yours Truly
For UPVAN DEVELOPERS
24) Thus, by letter dated 1 September 2023, though the draft of
the proposed conveyance deed was shared with the Society, Respondent
No.1 ultimately relied upon Clause 12 of the Agreement for Sale and
refused to execute conveyance at that stage branding the Society's
demand as premature. The Respondent No.1 showed willingness to
execute conveyance (as per draft) only after completion of the entire
layout development. Therefore, letter dated 1 September 2023 cannot be
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treated as willingness on the part of Respondent No.1 to execute deed of
conveyance nor action of Respondent No.1 in addressing letter dated 1
September 2023 can be treated as an action in good faith as is assumed
by the Competent Authority. The Competent Authority has recorded
erroneous findings in para-33 of the order as under:
33. The Applicant's argument that conveyance cannot be deferred
indefinitely is acknowledged, as MOFA is a welfare legislation intended
to protect flat purchasers. However, the deferral in this case is not
indefinite, as it is tied to the completion of a disclosed phased
development plan, to which the Applicant's members consented. The
Applicant's building has already benefited from the global FSI of the
layout, and granting conveyance now would unjustly enrich the
Applicant while prejudicing the first opponent's contractual rights. The
balance of equity favors the first opponent, who has demonstrated good
faith through its letter dated September 1, 2023, offering a draft
conveyance, albeit subject to layout completion.
25) The finding of the Competent Authority that the Society
would enrich itself by grant of conveyance at this stage on account of its
building being benefited by use of global FSI of the layout is again totally
erroneous. No doubt for FSI computations, Respondent No.1 took into
consideration the entire plot area of 4683.80 sq. mtrs. However, as per
the Agreement for Sale, construction of building of the Society was
restricted only to land admeasuring 2799.90 sq. mtrs. Therefore, though
the Society may have been benefited by the FSI arising out of entire
layout, it has restricted its prayer for conveyance only in respect of the
land admeasuring 2799.90 sq. mtrs. Therefore, the alleged benefit
received by the Society in respect of the global FSI flowing out of entire
layout could not have been a reason for rejecting its application for
deemed conveyance.
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26) Having held that Competent Authority has erroneously
rejected Petitioner's application for deemed conveyance by relying on
Clause 12 of the Agreement for Sale, the next issue for consideration is
the exact land area of which the Petitioner-Society is entitled to seek
conveyance. As per the Agreement for Sale, Respondent No.1 took up
development of Society's building known as Woodlands in respect of the
land described in the Second Schedule. The Agreement for Sale refers to
two schedules. The First Schedule described the entire layout land
admeasuring 4683.80 sq.mtrs comprising of all 5 Plot Nos. 145 to 149.
However, the development of the building Woodlands was undertaken
only on land forming part of Plot Nos.145, 146 and 147 admeasuring
2799.90 sq. mtrs. Recital (I) to the Agreement for Sale makes it clear that
Respondent No.1 had undertaken construction only on undivided
portion of land admeasuring 2799.90 sq. mtrs (second schedule) out of
the total land admeasuring 4683.80 sq. mtrs.
27) However, it appears that while making FSI computations and
in the Area Statement incorporated in the sanctioned plan, the entire
area of plot of 4683.80 sq.mtrs was taken into consideration. After
considering the FSI 1.00, the built-up area available was 4683.80 sq.mtrs.
It appears that the developer had FSI credit (Development Rights) of
3870 sq. mtrs and additional 33% FSI was made available as per
Government Notification dated 24 October 2011 of 813.80 sq. mtrs. This
is how total permissible built-up area of 9367.60 sq. mtrs became
available. Since two bungalows on Plot Nos.148 and 149 had built-up
area of 611.58 sq. mtrs, the same was deducted and the proposed built-
up area for Society's building-Woodland was shown as 8619.45 sq. mtrs.
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This is how entire built-up area of 9367.60 sq. mtrs was divided into
611.58 sq. mtrs for two existing bungalows and 8619.45 sq. mtrs for
society's building-Woodland. Out of total FSI of 9367.60 sq.mtrs, FSI of
9231.03 was utilised in the above manner to construct Society’s building.
28) The G.R. dated 22 June 2018 provides for land sharing
proportionate to built-up area used in each building in the layout. There
appears to be two Certificates issued by the same Architect. In Certificate
dated 14 December 2024, the Society's Architect did land sharing
exercise by taking into consideration the built-up area actually utilised
for constructing Society's building and opined that Society was entitled
to share 93.375% of land in the total layout of 4683.80 sq. mtrs. He
accordingly opined that Society's share in the land was 4373.50 sq.mtrs.
29) However, since the Agreement for Sale contemplated
construction of Society's building only on Plot Nos.145, 146 and 147
admeasuring 2799.90 sq. mtrs, it appears that another Certificate dated
25 September 2024 was issued by the Architect for conveyance of land
admeasuring only 2799.90 sq.mtrs.
30) Thus, it appears that though the Society could have claimed
land admeasuring 4373.50 sq. mtrs representing 93.375% share in the
layout corresponding of built-up area of 8619.45 sq. mtrs utilized in
construction of its building, it has restricted the prayer for conveyance of
land admeasuring only 2799.90 sq. mtrs. Respondent No.1 is not opposed
to convey land admeasuring 2799.90 sq. mtrs and in the draft Deed of
Conveyance shared vide letter dated 1 September 2023, it in fact
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proposed to convey land admeasuring 2799.90 sq.mtrs to the Society.
Thus, there is no dispute between the parties about the area of land to be
conveyed. The dispute is only with regard to the timeline for conveyance
of land. I have already held above that Petitioner-Society is entitled to
seek conveyance of its share of land even before completion of entire
layout development.
31) Mr. Tamboly has expressed an apprehension that grant of
conveyance of land in favour of Petitioner-Society at this stage would
jeopardize the rights of Respondent No.1 to complete the layout
development in respect of the balance portion of land. He contends that
Respondent No.1 has now secured consent from tenants of the balance
two bungalows (Plot Nos.148 and 149) and that plans for construction of
second building are already approved by the Municipal Corporation. He
has contended that Respondent No.1 has secured additional FSI by
constructing PTC tenements on another plot of land. He expresses an
apprehension that after securing conveyance of land, the Petitioner-
Society would obstruct Respondent No.1 from completing the balance
development in the layout. The apprehension appears to be completely
misplaced. Mere grant of conveyance of portion of land in a layout in
favour of a Society can never affect the rights of the Developer to
construct on balance portion of land in the layout. In fact in ACME
Enterprises , one of the issues before this Court was whether a Society
can interfere in construction undertaken on balance portion of land by
the developer after securing conveyance of land falling to its share. This
Court held in paras-80 and 82 of the judgment as under:
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80. In my view, application of the methodology of ‘land cutting’ or
‘proportionate land segregation’ applied above, would provide an
answer to the above conundrum. When a society, construction of whose
building is complete, seeks conveyance of proportionate land in the
layout and once the land entitlement of such society is determined and
conveyance is executed and registered, conveying a portion of land in
the layout, such society need not be concerned with what the developer
does in the balance portion of the land in the layout, subject to the
disclosure restrictions. When a portion of land in the layout is conveyed
in favour of a society, it becomes owner of that portion of land and loses
all rights in respect of balance land in the layout. Upon acquisition of
ownership of portion of land in the layout, such society is entitled to
develop or redevelop the conveyed portion of land. The issue is whether
such society, who has secured ownership of part of land in the layout,
can restrain the developer from constructing disclosed buildings in the
layout, by availing the benefit of change in FSI norms/policy? The
answer to the question appears to be in the negative.
81. The main reason why developers oppose conveyance of any portion
of land in favour of completed buildings till completion of entire
development in the layout is because the FSI computations in respect of
the layout are always done on the whole of the land in the layout and
this system benefits the developers to a large extent. Let us take the
illustration of developer undertaking layout development in land
admeasuring 10,000 sq. mtrs, in which the developer has planned
construction of 4 buildings. First three buildings are constructed with
basic FSI 1.00 and each building has utilized built-up area of 2500 sq.
mtrs each, leaving only 2500 sq. mtrs of FSI balance for the fourth
building. The developer does not convey land to societies of those 3
buildings by citing the pretext of incomplete development of the layout.
By the time, the fourth building is taken up for construction, new DCR
is introduced permitting higher FSI 2.00. The developer submits the
revised plan for sanction by making FSI computation in respect of the
entire layout of 10,000 sq mtrs and secures sanction for total built-up
area 20,000 sq. mrts. He then deducts the utilized builtup area of 7500
sq. mtrs and constructs the fourth building with builtup area of 12500
sq. mtrs. This is how non-conveyance of any land in the layout enables
the developer to milk the additional FSI generated due to change in the
norms/policy. On the other hand, in the above illustration, the society
of three completed buildings secure conveyance of proportionate land
of 7500 sq. mtrs and the developer is left with ownership of only
balance land of 2500 sq. mtrs, even if he takes benefit of the increased
FSI norms and applies for revised building permission for 2500 sq. mtrs
land, he would be sanctioned built-up area of only 5000 sq. mtrs for the
fourth building. Thus, the difference between the two scenarios is that
in the former case (non-conveyance of any land), fourth building is
constructed with built up area of 12500 sq. mtrs whereas in the latter
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case, the fourth building has less built-up area of 5000 sq mtrs., though
the developer is permitted to take benefit of increased FSI in both cases.
In the former case, the developer would profiteer by utilizing the
additional FSI, whereas in the latter case, both society and the
developer would proportionately share the additional FSI. The present
case is similar to the latter scenarios, where portion of land can be
conveyed in favour of the Federation (15402.20 sq. mtrs) and the
remaining portion (3200 sq. mtrs) would remain in the ownership of the
Developer and both the Federation and Developer can proportionately
share the additional FSI arising out of DCPR2034.
82. Since this Court has arrived at a prima facie conclusion that
conveyance of entire layout land admeasuring 18602 sq. mtrs in favour
of the Federation is erroneous and that its land entitlement as of now
would be to the extent of 15402.20 sq. mtrs, the balance land
admeasuring 3200 sq. mtrs would be in the ownership of the Developer.
However, what the Federation is seeking to do is to interfere with the
Developer’s right of construction in the land, in which it has no title.
Can this be countenanced? In my view, yes, but to the limited extent of
binding the developer with disclosures made to the flat purchasers of
Building No. 2. The Federation can thus interfere with the right of the
Developer to construct Building No. 1 on land admeasuring 3200 sq.
mtrs to the limited extent of restricting the construction to built-up
area of 7166.70 sq. mtrs and 17 floors. The Federation cannot insist that
the Developer should not avail the increased FSI under DCPR-2034 in
respect of land admeasuring 3200 sq. mtrs. Since the Federation has
opted for conveyance of land before completion of layout development
and since its title in respect of land admeasuring only 15402.20 sq. mtrs
is prima facie upheld, it cannot have any say in respect of the balance
portion of land in the layout. Therefore, the developer cannot be
restrained from availing the FSI admissible under DCPR-2034 in respect
of land in which the Federation does not have any title. This is not a
case where the Developer is seeking to milk higher FSI flowing out of
the entire layout and loading the same on Building No. 1. The
additional FSI arising out of land admeasuring 15402.20 sq. mtrs would
continue to belong to the Federation, which is a reason why Mr. Chinoy
has repeatedly highlighted the position that if the Federation goes for
redevelopment today, it can construct upto 48,217.97 sq. mtrs under
DCPR-2034 regime i.e. upto 3.5 times its current built-up area of
13842.86 sq. mtrs. However, the expectation of the Federation that the
Developer cannot utilize the full FSI potential under DCPR 2034 regime
in respect of balance land of 3200 sq. mtrs is something which cannot
be countenanced.
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32) Thus, Petitioner-Society's interference to the proposed
construction by Respondent No.1 on balance portion of land would only
be to the extent of disclosures made to the flat purchasers. However, it is
not necessary to delve deeper into this aspect at this stage. If and when
the Society objects to the proposed development by Respondent No.1 on
balance portion of land, Respondent No.1 would be free to rely upon the
observations made in paras-80 and 82 of the judgment in ACME
Enterprises
to defend its action. I therefore do not find apprehension
sought to be expressed by Mr. Tamboly about jeopardizing the right of
Respondent No.1 to complete the balance construction by grant of
conveyance to be well founded.
33) Mr. Tamboly has further submitted that if this Court is of the
view that rejection of application for deemed conveyance is improper,
the proceedings need to be remanded for being decided afresh by leaving
open all the contentions of the parties. However, as observed above,
there appears to be no dispute between the parties about the area of land
to be conveyed in favour of the Petitioner-Society. Both Petitioner, as
well as Respondent No.1, are ad-idem that land admeasuring 2799.90 sq.
mtrs needs to be conveyed in favour of the Petitioner-Society. The only
dispute is about the timeline when such conveyance can be effected.
This Court has already held that conveyance cannot be postponed till
completion of entire layout development and that land can be conveyed
in favour of the Petitioner-Society even before completion of the layout
development. Since there is no dispute about area of land to be conveyed,
no purpose would be served in directing the Competent Authority to
decide the issues which are already settled by the present judgment. Ms.
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Neeta Sawant WP-11551 OF 2025
Patankar has relied upon judgment of this Court in Gala Complex
Premises (supra) in support of her contention that this Court has
directed issuance of Certificate of deemed conveyance by specifying the
area of land instead of remanding the application for fresh
consideration. In my view, similar course of action needs to be followed
in the present case as well in view of absence of any dispute about the
area entitlement of Petitioner-Society.
34) Mr. Patankar has relied upon judgment of this Court in
Mahanagar Realty (supra) in support of her contention of freezing of
FSI for the purpose of grant of deemed conveyance. In my view, this
Court need not go into the issue of freezing of FSI in the present case as
the Petitioner itself has restricted its prayer for conveyance of land
admeasuring only 2799.90 sq. mtrs and has not insisted for conveyance
of land corresponding to the built-up area utilized for construction of its
building. Also there is no dispute between the parties about area
entitlement.
35) The Petition accordingly succeeds, and I proceed to pass the
following order:
(i) The order dated 20 May 2025 passed by the
Competent Authority is set aside.
(ii) The Competent Authority is directed to issue
Certificate of unilateral deemed conveyance under
Section 11 of MOFA in respect of the land
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Neeta Sawant WP-11551 OF 2025
admeasuring 2799.90 sq. mtrs forming part of Plot
Nos.145, 146 and 147 (with corresponding CTS
numbers) in favour of the Petitioner-Society
alongwith the structure of the building within a period
of 6 weeks from today.
(iii) The Sub-Registrar concerned shall upon presentation
of Conveyance Deed together with the Certificate of
Competent Authority, register the conveyance in
accordance with law.
36) With the above directions, the Writ Petition is allowed. Rule
is made absolute. There shall be no order as to costs.
[SANDEEP V. MARNE, J.]
37) After the order is pronounced, the learned counsel
appearing for Respondent No.1 prays for stay of the operative directions
for a period of four weeks. The request is opposed by the learned counsel
appearing for the Petitioner. Considering the nature of findings recorded
in the judgment, I am not inclined to stay the operative directions. The
request is accordingly rejected.
NEETA
SHAILESH
SAWANT
[SANDEEP V. MARNE, J.]
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.06.15
19:24:31 +0530
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