As per case facts, Kiran Builders Pvt. Ltd., a developer, built several buildings, with flat purchasers forming Kalpita Enclave Co-operative Housing Society Ltd. and two other societies. A dispute arose ...
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Neeta Sawant WP---9694-2017.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9694 OF 2017
Kiran Builders Pvt. Ltd. ...Petitioner
V/s.
Kalpita Enclave Co-operative
Housing Society Ltd. And Ors.
...Respondents
WITH
INTERIM APPLICATION NO. 14625 OF 2023
Panom Developers LLP ...Applicant
In the matter between :
Kiran Builders Pvt. Ltd. ...Petitioner
V/s.
Kalpita Enclave Co-operative
Housing Society Ltd. And Ors.
...Respondents
WITH
INTERIM APPLICATION NO. 1080 OF 2026
Kalpita Enclave Co-operative
Housing Society Ltd. And Ors.
...Applicants
In the matter between :
Kiran Builders Pvt. Ltd. ...Petitioner
V/s.
Kalpita Enclave Co-operative
Housing Society Ltd. And Ors.
...Respondents
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_______
Mr. Mahendra Ghelani with Ms. Nizzica Pinto and Ms. Sneha Vani, for
the Petitioner.
Dr. Birendra Saraf, Senior Advocate with Mr. Rohan Savant, Mr.
Nirmal Devmani, Mr. Aman Saraf and Mr. Abhijeet Mahadeokar i./b. Mr.
Diwakar Gond, for Respondent Nos.1 to 3.
Ms. M.S. Bane AGP, for the State.
________________
CORAM: SANDEEP V. MARNE, J.
Reserved On: 11 June 2026.
Pronounced On: 18 June 2026.
Judgment:
1) The Petitioner-Developer has challenged the Order dat ed
15 May 2017 passed by the District Deputy Registrar, Co-operative
Societies-3, Mumbai and Competent Authority (Competent Authority)
under Section 11 of the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1963
(MOFA) granting unilateral deemed conveyance in respect of the land
admeasuring 21,736 sq. mtrs together with buildings standing thereon
in favour of Respondent Nos.1 to 3-Societies.
FACTS
2) Petitioner is a developer claiming rights in respect of the
land situated at CTS No. 69/6 (PT) and CTS No.35 of Village-Vile Parle
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admeasuring 26,000 sq.yards equivalent to 21,736 sq.mtrs. (subject
land) Petitioner undertook construction of 10 buildings bearing Nos. A
to H, J and K on the subject land. After surrendering of land required for
44 feet D.P. road forming part of the subject land, Petitioner secured
extra FSI and has also constructed buildings L and M on the subject
land. Petitioner also proposed construction of Buildings Nos. N and P
on the basis of additional FSI out of surrendered land for DP road.
However, on account of dispute relating to exact area of surrendered
land for D.P. road, Petitioner has not yet been able to construct
Building Nos. N and P on the subject land.
3) Kalpita Enclave CHSL (Respondent No.1) is formed by �at
purchasers of 10 buildings namely A to H, J and K. Respondent No.1-
Society was opposed to construction of Buildings Nos. L, M, N and P by
the Petitioner-Developer and accordingly instituted S.C. Suit No. 3226
of 1985 before the City Civil Court, Bombay and claimed conveyance of
entire land admeasuring 21,736 sq.mtrs. By judgment and decree dated
7 November 1997, the City Civil Court directed conveyance of only land
appurtenant of buildings Nos. A to H, J and K in favour of Respondent
No.1- Society. Respondent No.1-Society �led First Appeal No. 1091 of
2000 before this Court, which was admitted. In the meantime,
construction of Building Nos. L and M also got completed. The
Occupiers of �ats of Building No. ‘L’ formed Kalpita Enclave Building
No. L CHSL (Respondent No.2). Similarly, occupiers of �ats in Building
No. ‘M’ formed Kalpita Enclave Building No. M CHSL (Respondent No.
3). Respondent No.1-Society withdrew First Appeal No. 1091 of 2000 on
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16 September 2016 expressing intention to apply for dee med
conveyance.
4) After withdrawal of the First Appeal, Respondent Nos.1 to
3 jointly �led application under Section 11(3) of MOFA before the
Competent Authority seeking deemed conveyance of entire land
admeasuring 21,736 sq.mtrs. and building constructed thereon.
Petitioner opposed the application for deemed conveyance by �ling
reply. By impugned order dated 15 May 2017, the Competent Authority
has granted Certi�cate of unilateral deemed conveyance in respect of
land admeasuring 21,736 sq.mtrs along with buildings in favour of
Respondent Nos.1 to 3-Societies. Petitioner is aggrieved by certi�cate
of unilateral deemed conveyance dated 15 May 2017 and h as
accordingly �led the present petition. By order dated 5 March 2024, this
Court admitted the petition and passed interim order restraining
Respondent Nos.1 to 3 from acting on the impugned order of the
Competent Authority.
5) Since pleadings in the Petition are complete, with the
consent of the learned counsel appearing for the parties, the petition is
taken up for �nal disposal.
SUBMISSIONS
6) Mr. Ghelani, the learned counsel appearing for the
Petitioner submits that the Competent Authority has grossly erred in
granting deemed conveyance of the land in favour of Respondent Nos.1
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to 3-Societies by ignoring the decree dated 7 November 1997 passed in
S.C. Suit No. 3226 of 1985. That the decree has attained �nality on
account of withdrawal of the First Appeal on 16 September 2016. That
decree dated 7 November 1997 conveyed only land appurtenant to
Building Nos. A to H, J and K in favour of Respondent Nos.1-Society,
whereas now the said Society is claiming rights in respect of the entire
land admeasuring 21,736 sq.mtrs alongwith Respondent Nos.2 and 3.
That the issue of title to the portion of land in the layout between the
Petitioner and Respondent No. 1 is �nally settled by the decree of the
City Civil Court and that the Competent Authority does not have
jurisdiction to pass order contrary to the City Civil Court’s decree.
7) Mr. Ghelani further submits that the Competent Authori ty
has completely ignored the position that land admeasuring 1859 sq.
mtrs is handed over to Municipal Corporation of Greater Mumbai
(MCGM) for DP road and land admeasuring 158.05 sq.mtrs is reserved
for municipal market and land admeasuring 243.07 sq.mtrs is reserved
for primary school. That therefore the said land cannot be conveyed in
favour of the Respondent-Societies. That the Competent Authority has
completely ignored this position and has erroneously granted
conveyance of entire land admeasuring 21,736 sq.mtrs.
8) Mr. Ghelani further submits that the case involves layout
development. That Petitioner has so far constructed only Building Nos.
A to H, J and K and L and M. That the Petitioner has proposed
construction of Building Nos. N and P in the layout. That plans for
construction of Building Nos. N and P were sanctioned by MCGM and
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�at purchasers of Building Nos. A to H and J and K and the members of
Respondent-Societies were always aware of Petitioner’s plan for
construction of Building Nos. N and P in the layout. He submits that
MCGM illegally reduced the area of land taken up for construction of
D.P. Road from 2200 sq.mtts to 1859 sq.mtrs putting the construction
of Buildings Nos. N and P in jeopardy. That apart from Petitioner’s right
to claim FSI in respect of DP road land of 2200 sq. mtrs., there is also
reservation of land admeasuring 158.05 sq. mtrs for municipal market
and 243.07 sq.mtrs for primary school. That for reservation of that land,
Petitioner is entitled to secure development rights. That therefore the
land for DP road is erroneously reduced, the Petitioner is bound to
secure development rights in respect of the land reserved for municipal
market and primary school. That the process of handing over of land to
municipal market and primary school is held up on account of
neighboring landowners not cooperating with the MCGM. That only
part of Petitioner’s land is reserved for the said two purposes and the
balance land reserved is owned by other neighboring land owners. That
Petitioner has always showed willingness to surrender his part of the
reserved land, but the Municipal Corporation has expressed
unwillingness to accept possession of only part of the reserved lands.
That Petitioner has always given option to Respondent-Societies to
either compensate Petitioner in respect of the development potential in
respect of Building Nos. N and P for taking conveyance of the entire
land or to exclude the lands meant for Building Nos. N and P from the
conveyance.
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9) Mr. Ghelani further submits that the land is physic ally
available for construction of Building Nos. N and P. That Petitioner has
not given up right to construct Building Nos. N and P. He submits that
the Petitioner cannot be forced to accept monitory compensation for
acquisition of reserved land. That the Petitioner can also utilize
development rights in respect of the reserved land for construction of
Building Nos. N and P. Mr. Ghelani, would accordingly submit that the
issue of conveyance would arise only after the entire layo ut
development is complete. That after construction of Building Nos. N
and P, the Petitioner is willing to grant conveyance of the appropriate
portion of land in favour of Respondent-Societies and Societies formed
by occupants of Building Nos. N and P. That if Respondent Nos.1 to 3
insist that conveyance must be granted even before completion of
construction of Building Nos. N and P, the application be remanded for
conveying only proportionate land as per built-up area utilized in
construction of buildings of Respondent Nos.1 to 3 by carving out land
meant for construction of Building Nos. N and P.
10) Dr. Saraf, the learned senior advocate appearing for
Respondent Nos.1 to 3 opposes the petition. He submits that the decree
dated 7 November 1997 cannot come in the way of Competent
Authority exercising jurisdiction under Section 11 of MOFA. That the
context in which Suit was required to be �led by Respondent No.1 must
be appreciated. At that time, Respondent No1. was opposed to
construction of building Nos. L and M and wanted conveyance of entire
land to itself. However, since Building Nos. L and M got constructed in
the meantime, and since the Occupancy Certi�cate was granted during
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pendency of Suit in November 1990, the entire scenario has changed
which is the reason why Respondent No.1 withdrew First Appeal No.
1091 of 2000 and decided to seek joint conveyance in favour of
Respondent Nos.1 to 3 in respect of the entire land. That therefore the
decree passed in S.C. Suit No. 3226 of 1985 can have absolutely no
effect on the order of deemed conveyance. That Appeal is continuation
of the Suit, and that the Appeal was withdrawn with the speci�c
intention of applying for deemed conveyance.
11) Dr. Saraf further submits that so far as land surrendered for
DP Road and reserved for municipal markets and primary schools are
concerned, Respondent Nos.1 to 3 are willing to give up claims in
respect of those 3 pieces of land. Dr. Saraf goes a step further and
submits that the additional land admeasuring of 123.12 sq.mtrs is taken
over by MCGM in 2001 for widening of Sahar road and land
admeasuring 2328.41 sq.mtrs encroached by slum dwellers which is
outside the compound wall of the Society. He therefore submits that
the entire land admeasuring 4711.65 sq. mts relating to DP road,
municipal market, primary school, road widening and slum
encroachment need not be conveyed to the Respondent-Societies. That
Respondent-Societies are entitled to conveyance of entire land
admeasuring 21,736 sq.mtrs. That they are willing to restrict their
entitlement to land admeasuring 16,584.55 sq. mtrs so as to put an end
to the entire litigation.
12) Dr. Saraf further submits that the Petitioner has lost right
to construct balance Building Nos. N and P. Inviting my attention to the
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pleadings in para-9 of the Petition, Dr. Saraf submits that Building Nos.
N and P were to be constructed only on account of development rights
�owing out of land surrendered for DP road of 2200 sq. mts. That
however actually land area admeasuring 1859 sq. mtrs is ultimately
surrendered for DP road. He relies on letter dated 23 April 1991 of
MCGM to demonstrate that construction of Building Nos. N and P is not
possible on account of non-availability of balance FSI in lieu of DP
road. Dr. Saraf submits that the Petitioner cannot be permitted to
withhold conveyance for satisfying its greed of carrying out additional
constructions as and when new FSI becomes available. He relies on
judgments of this Court in Lakeview Developers Versus. Eternia Co-
operative Housing Society Ltd.
1
and Rajkumar Gulati and Ors. Versus.
S.D. Corporation Pvt. Ltd. and Ors
2
. He submits that the Petitioner can
secure monetary compensation/TDR as and when land reserved for
municipal market and primary school is acquired by the Municipal
Corporation. That TDR arising out of reserved land cannot be treated as
a development potential in respect of the land meant to be conveyed to
the Respondent-Societies. That entire development potential in respect
of the land is consumed by the Petitioner and that therefore it cannot
delay conveyance of the land for eternity. That process of surrender of
land reserved for municipal market and primary school is still not
complete. That the buildings of Respondent No.1-Societies were
constructed during 1970s and even buildings of Respondent Nos.2 and
3-Societies have received Occupancy Certi�cate in November 1990.
That period of over 46 years have passed from construction of the last
building and it is high time that conveyance of the land is granted in
1 2015 SCC Online Bom 3824
2 2025 SCC Online Bom 4370
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favour of the Societies. Dr. Saraf accordingly prays for issuance of a
direction to the Competent Authority to issue certi�cate of unilateral
deemed conveyance of land admeasuring 16584.55 sq.mtrs.
CONSIDERATION OF SUBMISSIONS
13) Petitioner undertook development of several buildings on
land admeasuring 21,736 sq.mtrs. While undertaking phase wise
development, initially Building Nos. A, B, C, D, F and G were
constructed on portions of the subject land. Thereafter, four buildings
bearing Nos. E, H, J and K were constructed on the subject land. It
appears that a portion of the said property was required for
construction of 44 feet D.P. road. Petitioner believed that the area of
land required to be surrendered for DP road out of the subject land was
2200 sq.mtrs. Accordingly, in the year 1983, Petitioner put up revised
plans for development of the total land admeasuring 21,736 sq.mtrs by
seeking development rights in respect of the land admeasuring 2200
sq.mtrs for DP road. Accordingly, Petitioner proposed to construct 4
additional building Nos. L, M, N and P in the subject land. The plans
were apparently sanctioned on 25 October 1983 which envisaged
construction of Building Nos. N and P as well. Petitioner �rst undertook
development of Building Nos. L and M and completed the same. It
appears that subsequently, the Municipal Corporation took a stand that
the actual area surrendered for DP road was only 1859 sq.mtrs. This
resulted in reduction of available built-up area making construction of
Building Nos. N and P impossible. Accordingly, Petitioner could not
construct Building Nos. N and P on the said property. The Building Nos.
L and M received Occupancy Certi�cate in November 1990 and
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thereafter apparently, no additional construction is put up by the
Petitioner-Developer due to consumption of the entire available FSI
potential based on computation of DP road land of only 1859 sq. mtrs.
14) Thus, as of now what stands on the land are Building Nos.
A to H and J to K and L and M. As observed above, occupants of
buildings A to H and J to K have formed Respondent No.1-Society
whereas occupants of Buildings Nos. L and M have formed Respondent
Nos.2 and 3-Societies respectively. All the three Societies jointly
applied to the Competent Authority for deemed conveyance of the
entire land admeasuring 21,736 sq.mtrs and by the impugned order
dated 15 May 2017, the entire land admeasuring 21,736 sq.mtrs has
been conveyed to Respondent Nos.1 to 3-Societies.
OBJECTION OF CONVEYANCE BEING CONTRARY TO CIVIL COURT’S DECREE
15) The �rst objection raised on behalf of the Petitioner to the
impugned order of deemed conveyance dated 15 May 2017 is that the
same is in the teeth of decree dated 7 November 1997 passed by the
City Civil Court in S.C. Suit No. 3226 of 1985. By decree dated 7
November 1997, the City Civil Court directed Petitioner to convey in
favour of Respondent No.1-Society sub-lease in respect of Building
Nos. A to H, J and K together with land appurtenant thereto with
common right of way and common enjoyment of recreational ground.
The operative part of decree dated 7 November 1997 reads thus:
The Plaintiffs suit is partly decreed as per following terms:-
a) The 1st defendant is ordered and directed to execute an
indenture/conveyance of sub lease in respect of buildings A to H, J
and K together with the land appurtenant thereto, with common right
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of way and common enjoyment of recreation ground of payment of
proportionate costs of maintenance.
b) The 1st defendant is also ordered and directed to submit to the
plaintiffs within six weeks from the date hereof draft of such
indenture/conveyance deed, to be executed together with a copy of
the plan to be attached thereof showing locations of the said buildings
A to H, J and K together with the land appurtenant thereof to be sub-
leased and the common right of way and recreation ground, within 4
weeks from the receipt of the said draft and the plan, and plaintiffs
shall approve the same and get engrossed and stamped and submit to
the 1st defendant for its execution. The parties to the suit will have
liberty to apply in case of disagreement between them.
c) Upon engrossing and stamping the said sub-lease the plaintiff shall
tender the same to the 1st defendant alongwith the arrears of
proportionate lease rent payable by them as also the arrears of
outstanding payable by them to 1st defendant and the 1st defendant
shall execute the same within 2 weeks thereof. The plaintiffs shall
lodge the same for registration with Sub-Registrar of assurances and
pay the registration charges and the 1st defendant admit execution
within six weeks thereof.
Rest of the prayers are dismissed. The suit against 2nd defendant is
dismissed. The parties to bear the own costs.
Dated: 7th Nov. 1997
16) The decree dated 7 November 1997 was challenged by
Respondent No.1-Society before this Court by �ling First Appeal No.
1091 of 2000. However, the Appeal was withdrawn by Respondent No.1-
Society on 16 September 2016 expressing that the Society intended to
apply for deemed conveyance. Accordingly, the First Appeal was
permitted to be withdrawn vide order dated 16 September 2016, which
reads thus:
P.C.:
1. Not on board. Mentioned. Taken on board.
2. Learned counsel for the appellant/applicants submits that the
appellant-society does not want to proceed with the present appeal.
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The letter to that effect issued by the Secretary of the appellant-
society is produced on record and marked as Annexure-A. The
secretary of the society is also present before the Court and submits
that the society wants to withdraw the appeal as the society intends
to apply for the deemed conveyance.
3. In view thereof, the appeal stands disposed of as withdrawn. No
order as to costs.
4. In view of the disposal of the appeal, the civil application no more
survives and stands disposed of.
5. The permission is granted to apply for the original documents
produced in the case.
17) It is contended on behalf of the Petitioner that withdrawal
of the First Appeal by Respondent No.1-Society has given �nality to the
decree dated 7 November 1997. It is contended that when Civil Court
has directed conveyance of only land appurtenant to Building Nos. A to
H, J and K to Respondent No.1-Society, it was impermissible for that
Society to �le application for deemed conveyance before the
Competent Authority. What is sought to be contended on behalf of the
Petitioner may appear to be attractive in the �rst blush and ordinarily
this Court would not countenance Competent Authority exercising
jurisdiction under Section 11 of MOFA after adjudication of entitlement
for conveyance by the Civil Court. However, what needs to be
appreciated in the present case is the background in which the Suit was
�led and the decree has been passed by the Civil Court. At the time
when S.C. Suit No. 3226 of 1985 was �led, Petitioner-Developer had
completed construction of only Building Nos. A to H, J and K and
Respondent No.1-Society was formed by the �at purchasers thereof.
Petitioner proposed to construct four more Building Nos., L, M, N and P
by utilizing FSI �owing out of land surrendered for DP road.
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Respondent No.1-Society was opposed to the said plans of the
Developer and accordingly �led S.C. Suit No. 3226 of 1985 before the
City Civil Court. The Suit was �led essentially to prevent the Petitioner
from putting up construction of four additional budlings. No doubt, the
Suit was also for claiming conveyance of the entire land in favour of
Respondent No. 1 Society. Thus the �rst Respondent Society believed
that the development potential in the layout was complete after
construction of Building Nos. A to H, J and K and that therefore the
entire land admeasuring 21736 sq. mtrs must be conveyed to it.
18) However, during pendency of the suit, Petitioner was
successful in constructing Building Nos. L and M and the Occupancy
Certi�cate in respect thereof was issued in November 1990. Thus, by
the time decree dated 7 November 1997 was passed, two more Building
Nos. L and M were already constructed by the Petitioner on the land of
which conveyance was sought by Respondent No.1-Society. It appears
that the City Civil Court took into consideration the fact that two more
buildings had come up on the land and accordingly directed conveyance
of only land appurtenant to Building Nos. A to H, J and K in favour of
Respondent No.1-Society. Respondent No.1 got aggrieved by
conveyance of only limited land in its favour and accordingly �led First
Appeal No. 1091 of 2000 in this Court. By the year 2016, the position
that existed was that two more buildings had come up on the land in
respect of which Respondent Nos.2 and 3 Societies were formed. At this
stage the �rst Respondent Society changed its original stance and
agreed that even the societies formed in respect of Building Nos. L and
M are also entitled to conveyance of portion of land and that the entire
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land cannot be conveyed only in favour of Respondent No. 1-Society.
Therefore, all the three Societies came together and decided to seek
joint conveyance of the entire land in their favour rather than �ghting
amongst each other. In my view, this was a correct decision taken by
the three Societies rather than seeking to divide the lands amongst
each other. Respondent Nos.2 and 3-Societies were not parties to S.C.
Suit No. 3226 of 1985 and to First Appeal No. 1091 of 2000. Therefore,
First Appeal could not have been effectively decided in absence of
Respondent Nos.2 and 3-Societies. It would have been dif�cult for the
Appellate Court to decide land entitlement of Respondent No.1 without
hearing Respondent Nos.2 and 3-Societies. Appreciating this dif�culty,
Respondent No.1-Society decided to join hands with Respondent Nos.2
and 3 and claimed conveyance of the entire land.
19) After having decided to seek joint conveyance of the entire
subject land in favour of the three societies, two options were open to
Respondent No.1 Society. The �rst option was to secure conveyance
through the Court. Accordingly, Respondent No. 1 could have applied
for amendment of the Plaint at appellate stage or could have withdrawn
the Appeal with liberty to �le a fresh suit seeking conveyance of entire
land in favour of the three societies. However, provisions of Section 11
of MOFA were amended and a faster and swifter remedy of deemed
conveyance was provided during pendency of the First Appeal. Thus
second option became available for the Respondent Societies and
accordingly they decided to �le application for deemed conveyance.
This is a reason why First Appeal No. 1091 of 2000 was withdrawn
expressing intention to �le application for deemed conveyance.
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20) Considering the above position, it is dif�cult to hold that
decree dated 7 November 1997 came in the way of Competent Authority
deciding an altogether different prayer made by Respondent Nos.1 to 3
Societies for deemed conveyance. Instead of impleading Respondent
Nos.2 and 3 to First Appeal No.1091 of 2000, Respondent No.1-Society
thought it appropriate to �le a joint application for deemed conveyance
along with Respondent Nos.2 and 3. It is well settled that an Appeal is a
continuation of the Suit. What can be done during pendency of Suit can
also be done during pendency of the Appeal. It is always open for a
party to withdraw a conveyance suit and �le application for deemed
conveyance. Legislature has consciously provided for a quicker and
swifter remedy to the Societies to secure conveyance of land.
Therefore, merely because a suit is instituted, the same does not
prevent a Society from applying for deemed conveyance by withdrawing
the suit. In the present case, the Suit was �led when there was no
provision in MOFA for deemed conveyance. Since S.C. Suit No. 3226 of
1985 could have been withdrawn by Respondent No.1-Society with
liberty to �le joint application for deemed conveyance with Respondent
Nos.2 and 3-Societies, the same course of action could be adopted even
during pendency of the First Appeal.
21) In my view, therefore the objection sought to be raised by
the Petitioner about impermissibility for Competent Authority to
decide application for deemed conveyance after withdrawal of the
Appeal is completely misplaced. The objection of res-judicata can also
not be raised since the Appeal was withdrawn expressing intention to
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�le application for deemed conveyance. The objection in this regard
sought to be raised on behalf of the Petitioner is accordingly repelled.
ERROR COMMITTED BY THE COMPETENT AUTHORITY IN CONVEYING LAND
ADMEASURING 21,736 SQ.MTS.
22) It is sought to be contended on behalf of the Petitioner that
the entire land admeasuring 21,736 sq.mts cannot be conveyed in
favour of Respondent Nos.1 to 3 on account of surrender of land for DP
road and reservation of lands for municipal market and primary school.
Dr. Saraf fairly admits that the land admeasuring 1859 sq.mtts is
surrendered for DP road and lands admeasuring 158.05 sq.mtrs and
243.07 sq.mtrs are reserved for municipal market and primary school
respectively. With a view to put an end to the litigation, he fairly
concedes that the said three portions of land need not be conveyed to
Respondent -Societies though in law the Societies may be justi�ed in
seeking conveyance of bene�ts �owing through the said lands. To this
extent, there appears to be an error in the order passed by the
Competent Authority in directing conveyance of entire land
admeasuring 21,736 sq.mtrs.
23) In fact, Dr. Saraf walks a step further and submits that in
addition to exclusion of 3 portions of land surrendered for DP road and
reserved for municipal market and primary school, there is certain more
portion of land which is incapable of being conveyed in favour of
Respondent-Societies. He has submitted that the land admeasuring
123.12 sq.mtrs has been taken over by MCGM for widening of Sahar
road. Similarly, portion of land falling outside Societies’ compound
admeasuring 2328.41 sq.mtrs is encumbered by slum and is not in
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physical possession of the society. It is submitted that societies are not
interested in seeking conveyance of land admeasuring 2328.41 sq.mtrs
encumbered by slum. This is how Respondent Nos.1 to 3 societies are
willing to given up claims in respect of the total land admeasuring
4711.65 sq.mtrs and conveyance is insisted only in respect of land
admeasuring 16584.55 sq.mtrs. The statement showing the above
calculations, which is presented by Respondent Nos.1 to 3 is as under:
Description SQ. MTS.
AREA OF PLOT AS PER 7/12 EXTRACT AS PER APPROVED
LAYOUT PLAN
21,296.20
LESS
A AREA OF PLOT HANDED OVER BY KIRAN BUILDERS TO
BMC FOR DP ROAD
1859.00
B MARKET RESERVATION OF DP 158.05
C PRIMARY SCHOOL RESERVATION 243.07
AREA OF PLOT LESS (A+B+C) 19,522.22
D AREA TAKEN OVER BY BMC IN 2001 FOR WIDENING OF
SAHAR ROAD (5 FEET)
123.12
E AREA ENCUMBERED BY SLUMS AND NOT IN PHYSICAL
POSSESSION (outside compound wall)
2,328.41
TOTAL DEDUCTION ( A+B+C+D+E) 4,711.65
AREA OF PLOT LESS ( A+B+C+D+E) 16,584.65
AREA OF PLOT THAT SOCIETIES ARE SEEKING REVISED
CONVEYANCE OF
16,584.55
24) Thus, there appears to be an error in the order of the
Competent Authority in directing conveyance of entire land
admeasuring 21,736 sq.mtrs and that error can be corrected by this
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Court. The manner in which such correction can be effected is being
discussed in the latter part of the judgment.
PETITIONER’S RIGHT TO CONSTRUCT BUILDING NOS. N AND P AND TO
DELAY CONVEYANCE TILL COMPLETION OF ENTIRE LAYOUT
25) It is contended by the Petitioner that it is ent itled to
construct Building Nos. N and P as per plans sanctioned in the year
1983 and that therefore conveyance of even land admeasuring 16584.55
sq. mtrs., which is claimed to be in physical possession of the Societies,
cannot be granted. It is contended that Building Nos. N and P would
come up on land admeasuring 16584.55 sq.mtrs and this is how
conveyance of even land of 16584.55 sq. mtrs. is also opposed by the
Petitioner.
26) As observed above, after completion of construction of
Building Nos. A to H, J and K, Petitioner proposed construction of four
more Building Nos. L, M, N and P on the land. Construction of the said
four buildings was apparently premised on Petitioner’s belief that the
area of land surrendered for DP road was 2200 sq.mtrs. However, it
latter transpired that the actual land surrendered for DP road was only
1859 sq.mts. Accordingly, the development rights �owing out of
surrendered land for DP road got reduced and Petitioner was prevented
from constructing Building Nos. N and P. He could construct only
Building Nos. L and M out of development rights secured through
surrender of land for DP road. This position is admitted by the
Petitioner in para-9 of the Petition wherein it is averred as under:
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9. Occupation certi�cate of Buildings L and M were issued by MCGM
in November 1990 but construction of building nos. N and P had to be
deferred because on actual demarcation and survey of the DP road
land on site, the area was ascertained to be 1859 sq.mts., instead of
2200 sq.mts., thereby restricting the construction of buildings of N
and P due to de�cit of FSI. The buildings N and P have been approved
in the layout plan and can be constructed in lieu of development
rights but due to matters pending before the Hon'ble court, the
Petitioner has so far refrained from carrying out any remaining
further construction activities on the proposed land.
27) Thus, construction of Building Nos. N and P could not be
carried out by the Petitioner only on account of dispute relating to area
of land surrendered for DP road. For the last 46 long years (after receipt
of OC for Building Nos. L and M) Petitioner has not been able to resolve
the said area dispute. On the other hand, Municipal Corporation has
emphatically informed the Petitioner way back on 23 April 1991 that
there was no balance FSI in lieu of DP road and that construction of
Building Nos. N and P was not possible. The letter dated 23 April 1991
reads thus:
23 APR 1991
M/s. Kiran Builders Pvt. Ltd.;
17, Kamer Building,
2nd �oor, 38 Cawasji Patel Street,
Bombay 400023.
Sub.: Certi�cate that there is no N-P building existing
since there is no balance F.S.I. on property known as
kalpita Enclave.
Sir,
Ref.: Your letter dt. 2-4-91.
With reference to the above, I have to state that there is no
balance F.S.I. in lieu of D. P. Road under 10 (2) on property bearing C.
T. S. No. 27,31,33,35,360,361 and 362 The construction of Building
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No. N-P is not possible. The contents of your letter dated 2-4-1991 are
con�rmed.
Yours Faithfully
Assistant Engineer Building
Property
(W.D.) K/E Ward.
28) Faced with the dif�culty that development potential in
respect of the land surrendered for DP road is complete and that no FSI
is available for construction of Building Nos. N and P, Petitioner has
sought to suggest that it is likely to receive development rights at least
qua the land acquired for municipal market and primary school. As
observed above, land admeasuring 158.05 sq.mtrs is earmarked in the
DP for municipal market reservation and land admeasuring 243.07
sq.mtrs. is earmarked for primary school reservation. Petitioner
believes that upon acquisition of those two portions of land, it is likely
to receive development rights which it purposes to utilize for
construction of Building Nos. N and P.
29) I must observe that this novel idea of utilizing
development rights �owing out of reserved land for construction of
Building Nos. N and P now engineered by the Petitioner is preposterous
to the core. There are multiple reasons for holding so:
Firstly, there may or may not be acquisition of lands reserved in DP for
municipal market and primary school. It is not incumbent for the
Planning Authority to acquire the land reserved in the DP. If the land is
not acquired within the stipulated time, it is open for the land owner to
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issue notice under Section 127 of the Maharashtra Regional and Town
Planning Act, 1966 and get the land out of reservation. In that situation
ownership of the land would be retained with the Petitioner.
Secondly, in the event the Municipal Corporation acquiring the land
reserved for municipal market and primary school, the Petitioner would
secure compensation in respect of the acquired land. Though the
Petitioner may opt for Transferable Development Rights (TDR) in
respect of the acquired land, such TDR is issued mainly on account of
�nancial dif�culties of the planning authority in paying monitory
compensation. Thus, Petitioner’s entitlement in respect of acquired
land is towards compensation paid either in monetary terms or through
TDR.
Thirdly, in case the TDR is granted by issuance of Development Rights
Certi�cate (DRC), the FSI/TDR re�ected therein can be utilised in some
other project by the Petitioner itself or can be monetized. TDR is freely
tradable in the market. The DRC can be hoarded, or TDR can be sold in
parts or uitlised by the holder himself or sold completely as per his
desire. Thus, it is not necessary that the TDR must be utilized for
putting up additional construction on the subject land.
Fourthly, Petitioner would still be the owner in respect of the slum land,
which can be redeveloped where the TDR granted for acquired land can
be utilized.
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Fifthly, and most importantly, the compensation receivable either in
monetary terms or in the form of TDR cannot be treated as a
development potential for land to be conveyed in favour of
Respondent-Societies. Once land is acquired, it would get separated
from the layout and would have no relationship with the development
carried out in the layout. Therefore, even if Petitioner chooses to opt
for TDR in respect of the acquired land, the same cannot be treated as a
development potential for construction of Building Nos. N and P which
was envisaged out of usable FSI �owing out of land surrendered for DP
land.
Sixthly, both the lands reserved for municipal market and primary
school have not yet been acquired by the Municipal Corporation.
Petitioner itself has contended that larger lands are earmarked in the
reservations and only some part of Petitioner’s land has been reserved.
Petitioner has admitted that the Municipal Corporation has not shown
willingness to accept possession of only part of reserved land on
account of non-co-operation by the neighboring land owners. These
may be valid dif�culties for the Petitioner. However, till Municipal
Corporation acquires the land and pays compensation/TDR to the
Petitioner, conveyance of the land meant for the Societies cannot be
delayed.
30) In view of the above reasons, it is dif�cult to hold that
there is development potential left in land admeasuring 16584.55
sq.mtrs. of which conveyance is sought by the Petitioner.
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31) Even otherwise, it is well settled position of law that a
Developer cannot put up additional constructions for eternity on the
basis of FSI made available in future. The issue is well settled by
Division Bench judgment of this Court in Lakeview Developers (supra)
in which it has held in paras-55 to 56 as under:
55. In our view, therefore, from the aforesaid judgment, it is clear that
the developer cannot claim that he can continuously exploit the
building potential for eternity without conveying the land in favour of
the Society. The obligation to convey the land in favour of the Society
within a prescribed time and the obligation to make true and full
disclosure under Clauses 3 and 4 of Form V remains unfettered. If the
full development potential of the land is exhausted and the obligation
for conveyance of land in favour of the Society has arisen as per the
Act and Rules and if the developer fails to do so then any further
bene�t which would accrue to the developer on account of any
additional TDR or FSI made available, cannot be used by him for the
purpose of construction of additional buildings. For example,
recently, the Government of Maharashtra has announced that the FSI
which would be available in the City of Greater Mumbai would be
increased by 0.6. The bene�t of this announcement cannot be availed
by a developer who has not conveyed the property in favour of the
Society though he was under legal obligation to do so, having fully
developed the building potential of the land under building as per
true and full disclosure under Section 3 and 4 of the said Act and
Clauses 3 and 4 of Form V of the said Rules. He, therefore, cannot
having failed in his obligation to convey the property within the time
prescribed thereafter claim that full building potential has not been
utilized and claim right to construct further buildings.
56. In our view, from the facts and circumstances of the present case,
it can be seen that though the developer/promoter had fully utilized
the full FSI/potential of the land and was under an obligation to
convey the property after construction of the 10 th building on Sector
IV-A, he is now trying to construct four other buildings by claiming
additional TDR and trying to load it on the four additional buildings.
In our view, prima facie, it can be seen that full development
potential/FSI has already been utilized by the developer and his claim
that additional buildings were constructed by utilizing the additional
TDR prima facie does not appear to be correct if the layout plan
produced by the Plaintiffs/Societies is taken into consideration.
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32) The principles are reiterated by this Court in its judgment
in Rajkumar Gulati (supra). Therefore, mere possibility of additional
FSI being made available in respect of the reserved land cannot be a
ground for not conveying the land in favour of Respondent-Societies.
CONCLUSIONS
33) In view of the above discussions, I do not �nd any in�rmity
in the Competent Authority exercising jurisdiction under Section 11 of
MOFA for grant of deemed conveyance of the land in favour of
Respondent Nos. 1 to 3-Societies. As observed above, mere passing of
decree in the suit �led by Respondent No. 1 or withdrawal of Appeal by
it does not come in the way of the Competent Authority in entertaining
and deciding the joint application made by Respondent Nos. 1 to 3
societies for deemed conveyance. The Occupancy Certi�cates in respect
of buildings of Respondent No.1-Society were issued in 1970s whereas
those in respect of buildings of Respondent Nos.2 and 3-Societies is
issued in the year 1990. Petitioner has already delayed performance of
its statutory obligation to convey its right, title and interest in the land
and buildings in favour of the Societies under Section 11 of MOFA. The
Competent Authority has rightly stepped into the shoes of the
Petitioner and has performed the act which the Petitioner was
supposed to perform. Therefore, no error can be traced in exercise of
jurisdiction by the Competent Authority.
34) However, the Competent Authority has committed a sligh t
error in conveying entire land admeasuring 21,736 sq.mtrs ignoring the
fact that certain portion of land is surrendered for D.P. road and some
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portion of land is reserved for municipal market and primary school in
the development plan. Additionally, Respondent Nos.1 to 3 have
voluntarily sought deduction of land taken over by MCGM for widening
of Sahar Road, as well as land encroached by slum dwellers. The
Societies have accordingly restricted conveyance in respect of the land
admeasuring only 16584.55 sq.mtrs. Upon conveyance of land
admeasuring 16584.55 sq.mtrs, Petitioner would be able to enjoy rights
in respect of the land admeasuring 158.05 sq.mtrs reserved for
municipal market, land admeasuring 243.07 sq.mtrs reserved for
primary school, as well as land admeasuring 123.12 sq.mtrs taken over
by MCGM for road widening and land admeasuring 2328.41 encroached
upon by slum dwellers. Petitioner can claim bene�ts in respect of the
reserved land and land taken over for road widening. Petitioner can also
carry out redevelopment in respect of the land encroached by slum
dwellers. Respondent-Societies have shown the magnanimity in not
claiming title in respect of land admeasuring 4711.65 sq.mtrs. In my
view, therefore a direction needs to be issued to the Competent
Authority for conveyance of land admeasuring 16584.55 sq.mtrs. in
favour of Respondent Nos.1 to 3-Societies.
ORDER
35) The Petition accordingly succeeds partly, and I proceed to
pass the following order:
(i) Order dated 15 May 2017 passed by the Competent
Authority as well as certi�cate of unilateral deemed
conveyance issued in pursuance thereof are set aside.
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(ii) Application No. 119 of 2016 is remanded to the
Competent Authority for the limited purpose of issuing
certi�cate of unilateral deemed conveyance in respect of
land admeasuring 16584.55 sq.mtrs in favour of
Respondent Nos.1 to 3 -Societies within a period of 3
months.
(iii) Parties shall appear before the Competent Authority
on 24 June 2026 along with copy of this order downloaded
from the website of the Court.
36) With the above directions, the petition is partly allowed.
Rule is made partly absolute. There shall be no order as to costs.
Pending interim applications, if any, are disposed of.
[SANDEEP V. MARNE, J.]
Page No. 27 of 27
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NEETA
SHAILESH
SAWANT
Digitally signed by
NEETA SHAILESH
SAWANT
Date: 2026.06.18
21:25:07 +0530
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