Bombay HC Rejects Society’s Bid For All Remaining Layout Land, Directs 58:42 Split Based On Its Written Consent For Rival’s 4,830-Sq-M BUA

The petitioner and Respondent No. 1 are housing societies whose buildings form part of a common layout measuring 9,108.10 sq. m.

Under a 1995 agreement, the petitioner consented to construction using up to 4,830 sq. m. of BUA, subject to fresh written consent for any further FSI.

In 2008, Respondent No. 1 obtained a decree directing the promoter to convey its right, title and interest in the land and building, but the decree did not determine the society’s precise land entitlement within the layout.

In the petitioner’s deemed-conveyance proceedings, the Competent Authority awarded it 4,497.58 sq. m. and held Respondent No. 1 entitled to a further area.

1. Whether the 2008 decree and the 2013 conveyance barred Respondent No. 1 from claiming further land, or entitled the petitioner to the entire balance layout land.

2. Whether the executing court could determine Respondent No. 1’s land share under Sections 47 or 152 of the Code of Civil Procedure, 1908, where the decree did not specify the area to be conveyed.

3. Whether proportionate land division should be based on the actual BUA used by Respondent No. 1, or capped at the 4,830 sq. m. of BUA to which the petitioner had consented in writing.

4. Whether the petitioner’s consent to construction using TDR/incentive FSI displaced the ordinary crystallisation/freezing principle for land division in a layout.

Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA) requires the promoter to convey the land and building to the organisation of flat purchasers; under Section 11(3), the Competent Authority may issue a deemed-conveyance certificate upon the promoter’s failure to do so.

Section 16 provides that MOFA prevails over contrary contractual terms.

Under Pratibha Singh v. Shanti Devi Prasad, (2003) 2 SCC 330, an ambiguity in identifying decretal property may, in an appropriate case, be resolved in execution under Section 47 CPC or corrected under Section 152 CPC; however, an executing court cannot adjudicate a substantive dispute over competing societies’ shares in layout land.

Under Satellite Garden-I CHSL v. State of Maharashtra, 2026:BHC-AS:37837, land in a layout is ordinarily divided proportionately to BUA, with entitlement crystallising under the applicable plan; where an earlier society has given written consent to a revised plan, proportionate division may instead take that consented plan into account.

The Court also applied the principles that res judicata requires prior adjudication of the issue in question and that no estoppel can defeat statutory rights under MOFA.

The civil decree established Respondent No. 1’s right to seek conveyance from the promoter, but it did not decide how the layout land should be divided between the societies.

The 2013 deed conveyed only 2,040 sq. m., an area different from the 3,040 sq. m. in the draft served during execution; there was no evidence that the executing court had approved the deed or recorded the decree as satisfied.

Accordingly, neither res judicata nor estoppel barred Respondent No. 1 from claiming its lawful share, and the petitioner could not obtain more land than its entitlement by relying on the deed.

The dispute over the societies’ respective shares was substantive and could not be resolved as a mere identification or correction issue under Sections 47 or 152 CPC.

Because the petitioner had expressly consented to construction using up to 4,830 sq. m. of BUA, the Court applied the consent-based exception to the crystallisation principle.

It excluded the additional 2,069.37 sq. m. of BUA used without further written consent and calculated the respective shares using 6,730.38 sq. m. for the petitioner and 4,830 sq. m. for Respondent No. 1.

This yielded total entitlements of 5,302.68 sq. m. and 3,805.42 sq. m., respectively.

The Court set aside the Competent Authority’s order and remanded the petitioner’s application for fresh adjudication.

Respondent No. 1 was directed to apply for deemed conveyance within four weeks.

The Competent Authority must decide both applications together and issue certificates reflecting the Court’s allocation: the petitioner—4,489.09 sq. m. net plot area, 792.19 sq. m. RG area and 21.40 sq. m. setback area, totalling 5,302.68 sq. m.; Respondent No. 1—3,221.56 sq. m. net plot area, 568.51 sq. m. RG area and 15.35 sq. m. setback area, totalling 3,805.42 sq. m.

No order as to costs.