Bombay High Court
M/S S And M Enterprises Thr Its Partners vs The Palazzo Building No 1 C.H.S.L Thou ... on 28 July, 2025
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2025:BHC-AS:31387
4. CIVIL WP-12297-22.docx
Amberkar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12297 OF 2022
M/s. S & M Enterprises .. Petitioner
Versus
The Palazzo Building No. 1 CHSL & Ors .. Respondents
....................
Mr. G.S. Godbole, Senior Advocate a/w Mr. Sumit Kothari,
Advocates for Petitioner
Mr. S.S. Panchpor a/w Mr. Aashay Rabade, Ms. Pradnya Borhade
and Mr. Shyam Taori, Advocate for Respondent No. 1
Mr. Hamid Mulla, AGP for Respondent Nos. 2 and 3 - State
...................
CORAM : MILIND N. JADHAV, J.
Reserved on : JULY 15, 2025
Pronounced on : JULY 28, 2025
JUDGMENT:
1. Present Writ Petition takes exception to the order dated
17.06.2022 passed by the District Deputy Registrar, Pune in
Application No.466 of 2021 filed by Respondent No.1 - Society under
Section 11(3) of the the Maharashtra Ownership Flats (Regulation of
the promotion of Construction, Sale, Management And Transfer) Act,
1963 (for short 'MOFA').
2. By order dated 17.06.2022, the District Deputy Registrar,
Pune allowed the Application filed by Respondent No.1 - Society and
granted deemed conveyance in respect of the subject property bearing
CTS No.1707(P) of C.S. No.1, Pune and Survey No.
256/1+1+1/2+2+3+4/1+4/2+5/1+5/2+6/1+6/2+6A/1+6A/2+
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7A+7B/1+7B/2/1/2 for land admeasuring 3422 square meters and
constructed area of 3648 square meters out of total 3880 square
meters originally situated in Village Hadapsar, Taluka Haveli and
District Pune (for short "Suit property") in favour of Society which is
admittedly owned by the Petitioner - Promoter / Developer. Pursuant
to the above order Deemed Conveyance is also registered by
Respondent No.1 - Society on 01.07.2022. Petition is filed on
12.10.2022.
3. Briefly stated facts germane for adjudication of the
present Writ Petition are as follows:-
3.1. Petitioner - Promoter / Developer being owner of suit
property was desirous of developing it in a phase-wise manner and in
furtherance thereof applied for obtaining various approvals, sanctions,
NOCs, Certificates, permissions etc. from the Pune Municipal
Corporation and Statutory Authorities for carrying out the proposed
development by exploiting its fullest potential. Accordingly on
23.05.2013 Petitioner - Promoter / Developer received
Commencement Certificate and approval for construction of first
building consisting of stilt + 9 floors on plinth area of 3170 square
meters. On 19.11.2013 Petitioner - Promoter / Developer obtained
non-agricultural permission in respect of the suit property. Thereafter
Petitioner - Developer handed over reserved and designated
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H.C.M.T.R. area, Development Plan road area and water body area to
the Competent Authority which were reserved in the suit property and
in lieu thereof became entitled for additional FSI / benefits.
3.2. On 11.01.2016 Petitioner - Promoter / Developer revised
the building plan of first building and got sanctioned a revised
Commencement Certificate from Pune Municipal Corporation for
building consisting of stilt + 11 floors with total 55 units, 24 two-
wheeler parking spaces and 58 cycle parking spaces for 3648.23
square meters constructed area. Members of the Society did not object
to this development. Promoter completed the said construction.
3.3. After completion of first building nomenclatured as
Palazzo, on 25.08.2016 Petitioner - Developer executed registered
Agreements under Section 4 of the MOFA with prospective flat
purchasers / members of Respondent No.1 - Society. On 20.07.2017
Petitioner - Promoter / Developer received part Occupation Certificate
for 55 flats in building No.1.
3.4. On 18.11.2019 Petitioner - Promoter / Developer
submitted further proposal for development to the Pune Municipal
Corporation for construction of additional building comprising of
ground + 18 storeys on the balance suit plot by exploiting the balance
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potential of the entire plot as available in accordance with law. CC
was sanctioned accordingly in 2021 by the Corporation.
3.5. In the interregnum, members of building No.1 filed
Application under Section 10(1) of MOFA for formation of Co-
operative Housing Society for 55 members of 'Palazzo' building before
the Deputy Registrar and the Society was registered on 26.06.2020.
3.6. On 31.08.2021, Respondent No.1 - Society issued notice
to Petitioner - Promoter / Developer calling upon it to execute
Conveyance Deed to Respondent No.1 - Society in respect of land
below its building alongwith the superstructure and building thereon
from and out of the suit property with proportionate undivided share
in the common areas, amenities, facilities and open spaces, etc.
3.7. On 12.11.2021 Pune Municipal Corporation issued
revised Commencement Certificate to Petitioner - Promoter /
Developer for development of the additional building as per its
building proposal dated 18.11.2019 in accordance with law.
3.8. On the same date i.e. 12.11.2021, Respondent No.1 -
Society filed Application No.466 of 2021 before the District Deputy
Registrar, Pune seeking Deemed Conveyance for plot area of building
No.1 i.e. 3422 square meters alongwith constructed area of 3648.19
square meters. On 24.12.2021, Petitioner - Promoter / Developer filed
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reply to the Application showing readiness to execute the conveyance
in favour of the Society but only after completion of the additional
building on the suit plot.
3.9. By order dated 17.06.2022, District Deputy Registrar,
Pune allowed the Application for Deemed Conveyance filed by
Respondent No.1 - Society for plot area of 3422 square meters
alongwith constructed area of 3648.19 square meters to the detriment
of Petitioner - Promoter / Developer. Pursuant to the aforesaid,
Deemed Conveyance is registered in favour of Respondent No.1 -
Society on 01.07.2022.
3.10. Hence, the present Petition.
4. Mr. Godbole, learned Senior Advocate for Petitioner -
Promoter / Developer has drawn my attention to clause 15 of the
MOFA Agreement executed between the parties (Promoter / Developer
and flat purchaser / member of Respondent No.1 - Society) and would
submit that the said clause clearly stipulates that Developer shall
transfer all rights in favour of the Society only on completion of all
buildings in the project on the suit plot.
4.1. He would submit that in any event the Competent
Authority is bound by the Government Resolution dated 22.06.2018
which in clause 4 thereof states that certificate for Deemed
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Conveyance in such a case can only be issued for the proportionate
area and not for the entire area as development is in subsistence. He
would submit that as provided in the Government Resolution,
Competent Authority ought to have conducted the exercise of
ascertaining only the area required to sustain the constructed structure
of Palazzo Building for granting conveyance and thereafter directed to
convey the said area beneath the building standing thereon alongwith
undivided proportionate area as available after completing
construction of the 2nd building. He would submit that however in the
present case Competent Authority has given a complete go-by to the
above exercise prescribed in the Government Resolution and has
granted Deemed Conveyance in respect of 3422 sq. mtrs. plot area out
of the suit property to the detriment of the Petitioner and jeopardizing
Petitioner's right to complete development on the balance suit property
in accordance with law so as to permit the Developer to exploit the
balance potential thereon.
4.2. He would submit that the Competent Authority failed to
follow the mandatory provisions of Section 11(5) of MOFA which
require the Authority to issue notice to the Promoter to show cause as
to why unilateral instrument presented by the Society for registration
should not be registered as Deemed Conveyance despite the Petitioner
having appeared before the Competent Authority to oppose grant of
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Deemed Conveyance to Society at this stage and when development of
the 2nd building was underway and grant of conveyance to the
Society or the Apex Society was never objected to by Petitioner.
4.3. In support of his submissions, he has referred to and
relied upon the ratios of the following decisions of the Supreme Court
and this Court:-
(i) Kashish Park Reality Pvt. Ltd. and Anr. Vs. State of
Maharashtra and Anr.1;
(ii) Prestige Garden A-1 CHSL Vs. State of Maharashtra
and Ors.2 and
(iii) Runwal Paradise Vs. District Deputy Registrar Co-op
Societies and Ors.3.
4.4. In view of his above submissions, he would urge the Court
to allow the Writ Petition and quash and set aside the order dated
17.06.2022 passed by the District Deputy Registrar and cancel the
registered Conveyance for the entire suit plot dated 01.07.2022.
5. PER CONTRA, Mr. Panchpor, learned Advocate for
Respondent No.1 - Society would at the outset submit that order
granting Deemed Conveyance would not disentitle the aggrieved party
to file a Regular Civil Suit before the Civil Court seeking appropriate
relief pertaining to title in respect of the entire suit property and the
Competent Authority under MOFA is not empowered to adjudicate
1 2021(3) Mh.L.J. 778
2 Writ Petition No.7668 of 2023 decided on 28.03.2024
3 2024 SCC OnLine Bom 2041
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upon disputed questions of facts raised by Petitioner. He has referred
to and relied upon the decision of the Supreme Court in the case of
Arun Kumar H. Shah Vs. Avon Arcade Premises CHS Limited 4 to
contend that proceedings under Section 11(3) of the MOFA are
summary in nature and do not conclusively decide title of property
and the aggrieved party can always maintain a Civil Suit for
establishing its right and therefore deemed conveyance granted to the
Society need not be interfered with at this stage.
5.1. He would submit that Petitioner - Promoter / Developer
herein has already filed Regular Civil Suit No.1715 of 2022 before the
Civil Judge Senior Division for permanent injunction on the basis of its
title to the suit plot with pleadings that order granting deemed
conveyance is void for the reasons stated in the said Suit and has
pleaded herein in the Petition a positive assertion that Petitioner -
Promoter / Developer is entitled to commence additional construction
on the balance plot being owner of the suit plot. He would submit that
thus Petitioner - Promoter / Developer has claimed ownership in
respect of the disputed portion of the suit property and sought
permanent injunction against Society. He would submit that when the
Civil Court is already seized of the proceedings, this Court should
refrain from interfering in the order of Deemed conveyance. He would
4 2025 SCC OnLine SC 828
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submit that except for the averment by the Petitioner - Promoter /
Developer that they are entitled to construct on the balance portion of
the suit property in a phase-wise manner, it is not contended by them
that the order of Deemed Conveyance is manifestly illegal or
otherwise.
5.2. He would submit that Petitioner - Promoter / Developer's
contention that as per terms of MOFA Agreement with flat
purchasers / members of the Society, they have already given their
consent in terms of Section 7 of MOFA and necessary disclosure in the
brochure has been made by him and hence in the light of such consent
contained in the Agreement and disclosure made in the brochure,
Petitioner - Promoter / Developer is entitled to construct the
additional building as per the sanctioned revised layout of 2021
cannot be countenanced as the alleged brochure is not forming a part
of the Agreement entered between Petitioner - Promoter / Developer
and flat purchasers of Palazzo building and the same was also not
referred to in their respective Agreements and there is nothing on
record to indicate that the said brochure was shown to the flat
purchasers at the time of execution of their Agreement or their consent
was ever taken based upon the said brochure.
5.3. He would submit that Government Resolution dated
22.06.2018 especially clause 2(C)(vi) therein stipulates that if there
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are many buildings on one plot and has separate co-operative societies
of each building and if construction of some of them is incomplete
then while granting Deemed Conveyance to the completed building,
undivided share of the occupancy rights in the proportionate area in
proportion to the construction of the building of such society or
ground coverage or plinth area or open space, common services and
facilities ascertained / computed should be and if there is more than 1
society in a layout and out of them only 1 society has made an
Application and other societies are not cooperating for conducting the
measurement, then the Competent Authority is competent to direct the
Society to conduct measurement by an approved architect on the
panel of the authority and call for report regarding area held by the
Society.
5.4. He would submit that on a bare reading of the aforesaid
directions in the Government Resolution it is seen that it is applicable
only in cases where there are more than 1 buildings on the same plot
and construction of the other buildings is incomplete and other
members of the buildings / Society are not co-operating for
measurement of land. Hence he would submit that the said
Government Resolution is not applicable to the facts of the present
case for the reason that in the original layout of 2013 which was
revised in 2016, the second building was never shown in the layout
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much less to state that construction of the second building is
incomplete at the time of filing of the Application for Deemed
Conveyance by Respondent No.1 - Society.
5.5. He would submit that reliance placed by Petitioner -
Promoter / Developer on the 3 rd layout of 2021 is misconceived in law
since in the original layout the 2nd building was never disclosed and
open 2 and 4 wheeler parking spaces were promised to be given to the
flat purchasers alongwith the first building i.e. "Palazzo" and hence
they agreed to purchase the flats. He would submit that if the entire
scheme including area information about prospective TDR / FSI is not
disclosed to the members of the first building when they purchased
their respective flats then the promoter loses his right to use any
additional FSI that he would be entitled to since in the present case
the original layout plan of building No.1 did not show proposed
construction of building No.2 on the balance suit plot.
5.6. He would submit that requirement of issuance of notice
under Section 11(5) is for the reason that in certain cases there may
be a statutory requirement of obtaining prior permission or consent of
the Authority before registration of the conveyance and the registering
authority cannot register an instrument and unless such permission is
obtained there may be a prohibition order of the competent Court
from executing the conveyance. He would submit that as such there is
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limited scope of adjudication by the registering officer under Sub-
section 5 of Section 11 and he does not have the power to go into the
correctness or otherwise of the order of Competent Authority. He
would submit that registering Authority is not the Appellate Authority
over the Competent Authority and therefore mere non-issuance of
notice by registering Authority under Section 11(5) of the MOFA
would not vitiate registration of Deemed Conveyance as illegal.
5.7. In support of his submissions, he has referred to and
relied upon the ratios in the following decisions of the Supreme Court
and this Court:-
(i) Noopur Developers Vs. Himanshu V. Ganatra5;
(ii) Dharampal Satyapal Ltd. Vs. Deputy Commissioner of
Central Excise, Gauhati and Ors.6;
(iii) Dosti Corporation Vs. Sea Flama CHS Ltd.7 and
(iv) Madhuvihar Co-operative Housing Society, Mumbai
and Ors. Vs. Jayantilal Investments, Mumbai and Ors.8
5.8. In view of his above submissions and the judicial
precedents he would urge the Court to dismiss the Writ Petition.
6. Heard the learned Advocates for the respective parties
and with their able assistance perused the record and pleadings of the
5 2010(7) Mh.L.J. 694
6 (2015) 8 SCC 519
7 2016 (5) Mh.L.J. 102
8 2011 (1) Mh.L.J. 641
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case. Submissions made by the learned Advocates have received due
consideration of the Court.
7. In the present case, it is prima facie seen that Petitioner -
Promoter / Developer has undertaken development of the suit
property in 3 phases to utilize its entire potential. It is seen that layout
of the buildings as desired to be developed is sanctioned by Pune
Municipal Corporation by issuance of commencement certificate dated
23.05.2013 for the first phase, commencement certificate dated
11.01.2016 for the second phase and commencement certificate dated
12.11.2021 for the third phase on applications made by Developer.
Insofar as development undertaken in the first phase is concerned, it
pertained to construction of first building out of two proposed
buildings. First building comprised of nine floors initially. Thereafter
in the second phase, two additional floors were planned and added to
the first building after 3 years and it was extended upto eleven floors
having a total of 55 flats. Thereafter it is seen that Developer filed
plan for construction of the second building in 2019 vide application
dated 18.11.2019 to the Corporation. Commencement certificate
dated 12.11.2021 for the third phase was issued which is appended at
page Nos. 102-105 of the Petition.
8. From the above it is prima facie seen that Petitioner
desired to exploit the complete FSI / potential as available to him as
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Promoter / Developer in respect of the suit plot. It is seen that in the
meanwhile when Application for the third phase of development
(dated 18.11.2019) for seeking commencement certificate was
pending before the Corporation since 2019, flat purchasers in the first
building formed a Co-operative Housing Society which was in fact
aided and assisted by the Petitioner - Promoter / Developer himself in
accordance with law. This fact is undisputed. In 2021, however the
Society of the members in the first building filed Application before
the Competent Authority seeking deemed conveyance. This
Application is dated 12.10.2021 and is appended at page Nos. 107-113
of Petition. On reading of the Application it is evident that Society
asked for deemed conveyance of the area of the building No. 1 and
constructed area admeasuring 3648.19 square meters only. The
Competent Authority granted deemed conveyance out of the suit
property for area admeasuring 3422 square meters and constructed
area of 3648.19 square meters to Society. This grant of deemed
conveyance is to the detriment of Petitioner and it has virtually
jeopardized further development undertaken on the balance plot
under the third phase for which Promoter is granted commencement
certificate for construction of the second building having legally
admissible sanctioned area for development in accordance with law.
This CC dated 12.11.2021 sanctioned takes into account the entire
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balance legally available potential FSI of the entire suit property
available to the Owner - Promoter / Developer alongwith permissible
FSI, TDR as available and entitled. Once that is the position rather the
admitted position and a valid CC is sanctioned as per the Application
for the third phase of development then balance development
potential is duly available on the suit property and development
proposed of the 2nd building to utilize the balance potential in the
layout is required to be allowed and completed. Hence Deemed
Conveyance granted to Society ought to have been restricted only to
the constructed area of the building of the Society at this stage until
the 2nd building was completed. Only after the 2nd building is
completed, deemed conveyance for the undivided / proportionate land
area can be granted either jointly or severally to both buildings or the
Apex Society in accordance with law. That not having been done, what
has happened is that conveyance of land area of 3422 sq. mtrs. out of
suit property has been granted to the Society which is objected to by
the Promoter / Developer vehemently due to objection raised by
Society the further development of the second building cannot take
place.
9. From perusal of the plans it is seen that building No.1 has
plot area of 3422 square meters. It is comprising of an eleven storey
building having constructed area of 3648.19 square meters on plot
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area of 3422 sq.mtrs. Total area of original plot is 3880 square meters.
Out of the original plot area Promoter / Developer surrendered area
for H.C.M.T.R., D.P Roads and Water Body to the Corporation and
received additional benefits in lieu thereof for exploiting it on the
balance suit property at the time of construction of 1st building.
However Petitioner - Promoter / Developer is now constructing the
2nd building on the balance area of the plot by utilizing the entire
balance potential out of the total suit property area for constructing
the 2nd building in accordance with law which is duly sanctioned by
Planning Authority (Corporation) in accordance with law which will
have a total constructed area of 5438.33 square meters built-up area
equivalent to 5217 P line carpet area in the second building. This 2nd
building is proposed to be a 18 storey building standing next to
building No.1. Deemed Conveyance is granted to the Respondent No.1
- Society for plot area admeasuring 3422 square meters and
constructed area of 3648.19 square meters. Thus it is Petitioner's case
that if Respondent No.1 -Society is declared to be the owner of plot -
land area admeasuring 3422 square meters out of total original suit
plot area admeasuring 3880 square meters at this stage by virtue of
the Deemed Conveyance then Petitioner - Promoter / Developer will
not be able to construct and utilize the balance potential on the land
as available today for construction of its 2nd building proposed by
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Petitioner - Promoter / Developer. This is because the 2nd building is
planned in proportion to the total suit plot area as available today by
taking benefit of the TDR received pursuant to acquisition of the areas
surrendered out of the total plot towards H.C.M.T.R., the 2 DP road
areas and the water body area alongwith premium FSI being available
to Petitioner - Promoter / Developer as per prevailing policy. To
counter this, the only submission of Respondent No.1 - Society is that
when Petitioner - Promoter / Developer proposed building plan
during the 2nd phase it is in respect of the total area of the suit plot
shown as 3648.19 square meters and it was therefore meant for the
benefit of building No.1 only and therefore development of the 3rd
phase i.e building No.2 is not permissible since according to Society
there is no balance FSI available at all and neither consent of members
of Respondent No.1 - Society has been obtained by Promoter -
Developer for further development on the balance plot. This in short is
the dispute between the two parties before me which is agitated
vehemently by Mr. Panchpor.
10. Record presently placed before me however prima facie
indicates the fact that Respondent No. 1 Society is aggrieved and
dissatisfied with the Developer for various other reasons regarding
construction of Building No. 1. According to the Society, Promoter /
Developer has either not provided various amenities which ought to
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have been provided to them as promised in their respective registered
agreements for sale or has provided sub-standard amenities which are
not upto the mark, inter alia, pertaining to rain water harvesting
system, fire fighting system, provision of sub-standard solar system,
incomplete drainage work, repeatedly changing the plan, misleading
the Statutory Authorities about obtaining consent from the members
of Society for further development, utilizing the entire fungible FSI of
the said plot, still proceeding with unauthorized construction when
FSI is not available, written consent of Society and members of the
Society not having been obtained for further development undertaken
on the suit land, not providing good and convenient club house, not
providing landscape garden, not providing good children garden, not
providing senior citizen katta, not providing piped gas, not providing
effective security system, not providing decorative entrance lobby, not
undertaking works pertaining to the twin roads and two gates of the
Society, not repairing the compound wall of the Society wherever it is
broken, not deciding the issue of site office finally, for sub-standard
construction of Society building leading to leakage and seepage over
the years, not providing separate gymnasium to Society, not carrying
out fire audit, not resolving the issue of garbage dumped near the
Society and several incomplete works having remained pending. In
that regard Society has given a detailed letter highlighting a litany of
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complaints on aforesaid issues against the Developer on 03.02.2022
appended at page Nos. 124-135 of the Petition to the Municipal
Commissioner and the Chief Engineer. This undoubtedly is a separate
cause of action. It in any manner directly or indirectly cannot overlap
the present issue at hand. But is clearly appears that the above issue is
the precursor for the present issue.
11. Rather when the matter is argued before me by Mr.
Panchpor, he has attempted to defend the order of deemed conveyance
granted in favour of the Society for the area of the land therein on
consideration which was in fact never argued before the Competent
Authority. He would submit that the area mentioned in the agreement
entered into with the members of the Society qua the suit plot is
sought to be varied by the Petitioner - Promoter / Developer to his
advantage for the third phase of development and he now cannot
resile from the same and will have to abide by the same area which is
stated in the agreement. That apart he would vehemently submit that
it was duty of the Promoter / Developer to take individual consent of
each of the members of the Society before proceeding with the third
phase of development on the suit plot. The answer to the above
submissions and arguments advanced by Mr. Panchpor clearly lie in
the record of the case itself. Promoter / Developer has entered into
identical individual agreements with flat purchasers respective
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members of the Society and some clauses of the said agreement are a
direct answer to Mr. Panchpor's arguments. One such representative
registered flat agreement dated 25.08.2016 between the Promoter /
Developer and one member called Hanumandas Ramprasad Modani of
the Society is appended at page Nos. 42-96 of the Petition. Both
Advocates have informed me that identical 55 Agreements have been
entered into with all the members of the Society. At page No. 49 of
the Petition, recital Nos. 5, 6 and 7 of the said agreement read thus:-
"5. The Pune Municipal Corporation approved the plans,
designs, specifications, elevation, sections and details of the building
known as "The Palazzo" proposed to be constructed by the
Promoters on the Land consisting of stilt for parking and 9 upper
floors containing residential flats and the Pune Municipal
Corporation issued its Commencement Certificate No. CC/ 0565/13
dated 23rd May 2013 in respect thereof. The Pune Municipal
Corporation approved the revised plans, designs, specifications,
elevation, sections and details of the building proposed to be
constructed by the Promoters on the Land consisting of stilt for
parking and 9 upper floors containing residential flats and the Pune
Municipal Corporation issued its Commencement Certificate No.
CC/2820/13 dated 25th November 2013 in respect thereof. The
Promoters have handed over the H.C.M.T.R Area, the Development
Plan Road Area and the Water Body Area, which were located on the
Land, to the Authorities, and, on the Floor Space Index of the
Development Plan Road Area becoming available for utilization or
consumption in the development and construction being carried out
by the Promoters on the Land, the Promoters got approved the
revised plans, designs, specifications, elevation, sections and details
of the building proposed to be constructed by the Promoters on the
said Land consisting of stilt for parking and 11 upper floors
containing residential flats and the Pune Municipal Corporation
issued its Commencement Certificate No. CC/3454/15 dated 11th
January 2016 in respect thereof.
6. The Land together with the building known as "The Palazzo"
being constructed thereon is hereinafter referred to as "the said
Property and more particularly described in the First Schedule
hereunder written. The building known as The Palazzo being
constructed on the Land is hereinafter referred to as "the said
Building".
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7. The Promoters are proposing to carry out development and
construction on the said Property by utilizing the Floor Space Index
of the H.C.M.T.R. Area and the Water Body Area as well as
Transferable Development Rights in the form of FSI purchased or
acquired by the Promoters from elsewhere Including inter alla by
constructing additional floors, additional wing/s/building/s and for
these purposes the Promoters shall be entitled to and be at liberty to
get further amended/revised plans sanctioned from the Pune
Municipal Corporation and all approvals and sanctions from the
Pune Municipal Corporation and other concerned authorities for
carrying out such development and construction and carry out such
development and construction Provided However and it is hereby
expressly agreed that the area, location, dimensions and
specifications of the flat agreed to be purchased by the Flat
Purchaser/s are not affected or changed or modified in any manner
and the Flat Purchaser/s give/s his/her/their/its consent to the
aforesaid and the Flat Purchaser's/ Purchasers consent shall for all
purposes be considered as the Flat Purchaser's/s' consent under the
provisions of Sections 7(1)(1) and (ii) of the Maharashtra
Ownership Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963."
11.1. Thus, recital No. 7 is a complete answer to the defence
raised by the Society which the learned Competent Authority has not
considered at all despite being specifically pointed out by the
Petitioner.
12. Next clause 5 of the same agreement reads as follows:-
" 5. The Promoters hereby declare that at present the Floor
Space Index available in respect of the said Property is 2817.21
square meters and the Transferable Development Rights in the form
of FSI which can be utilized in the development and construction on
the said Property is 1690.32 square meters and that no part of the
floor space index of the said Property has been utilized by the
Promoters elsewhere for any purpose whatsoever.
In case any part of the said Floor Space Index of the said
Property will be utilized by the Promoters elsewhere, then the
Promoters shall disclose all such particulars in respect of such
utilization of such part of the said Floor Space Index by it in the
Deed of Conveyance to be executed in pursuance of this Agreement.
In case the Floor Space Index in the locality is increased or
otherwise the Promoters acquire Floor Space Index on acquisition of
Transferable Development Rights in respect of some other property
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(TDR) as per the provisions of the Development Control
Regulations/Rules or any other statutory Regulations relating to the
development of properties or acquire any additional property or
properties in the locality and amalgamate the same with the said
property and thereby more Floor Space Index becomes available for
utilization to the Promoters on the said property then the Promoters
shall be entitled to consume the same on the said Property or
otherwise in such manner as may be permissible as per the Rules
and Regulations of the Corporation including by constructing
additional floors and by constructing additional structures in case
while developing the said Property the Promoters have utilized any
floor space index of any other land or property by way of flooring
from space index then the particulars of such floor space index shall
be disclosed by the Promoters to Flat Purchaser/s in the Deed of
Conveyance to be executed in pursuance of this Agreement. The
residual FAR (FSI) of the said Property not consumed as well as of
any other property acquired by the Promoters by way of or under
Transfer of Development Rights will be available to the Promoters
till the execution of the Deed of Conveyance hereby contemplated in
favour of the Co-operative Society even if the Promoters have put
the Flat Purchaser/s and the purchasers of the other flats and
premises in the said Building in possession of their respective flats
and/or premises and also if the Flat Purchaser/s and the purchasers
of other flats and premises have formed a Co-operative Society and
that the Promoters shall be at liberty and be entitled to consume
such unconsumed F. A. R (F. S. I) of the said property as well as of
any other property that may be acquired by the Promoters by way of
or under Transfer of Development Rights either by constructing
additional structures on the said Property or by constructing
additional floors but without in any manner affecting the said Flat
or the rights of the Flat Purchaser/s in the said Flat and to sell the
same and to receive and appropriate to themselves the entire sale
price in respect thereof and further that if at the time of execution of
Deed of Conveyance such construction is incomplete, the Promoters
shall be at liberty and be entitled to complete the same and for the
purposes thereof and for all other purposes connected therewith the
Promoters shall have unfettered and unrestricted right, liberty and
authority to enter upon and be upon the said Property with all their
workmen and material and the Flat Purchaser/s or the Co-operative
Society or any one claiming under him/her/them/it as the case may
be shall not have any right to and as such shall not object to the
same or otherwise obstruct the same."
12.1. A conjoint reading of the above quoted recitals and clause
(5) above prima facie show that all residual FSI of the suit plot of land
not consumed as well as that acquired by way of TDR will be available
to the Promoter (emphasis supplied) till execution of the deed of
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conveyance contemplated in favour of the Co-operative Housing
Society. Clause 5 herein above is as widely worded as possible and it
does not need any reiteration or interpretation or explanation.
13. Next it would be worthwhile to peruse further directly
relevant clauses in this agreement. Clause 28 is the clause whereby
expressed consent of the flat purchaser is recorded in the said
agreement under MOFA for development of the balance suit plot in the
vicinity and that its conveyance shall be subject to such right of the
Promoter in favour of adjacent development in the vicinity. Clause 28
reads thus:-
"28. The Flat Purchaser/s hereby expressly agree/s that the
Promoters shall be entitled to grant to any properties in the vicinity
of the said Property right of way including the right to lay drains,
water pipes, electricity, cables, telephone cables and other service
facilities and either underground or overhead and so far as the right
of way is concerned throughout the year without break and at any
time of day and night and either on foot or in any of any and every
description and both laden and unladen over the internal roads on
the said property and to make the said Right of Way available to the
owner/s of the properties, workmen, buyers of premises in
buildings, their servants, agents, visitors etc., on such terms and
conditions and for such consideration as the Promoters may in their
absolute discretion decide. The consideration amount or amounts
receivable for grant of such right of way shall belong to and be the
property of the Promoters and the Flat Purchaser/s shall not have
any right, title and interest or claim to or in the same. The Flat
Purchaser/s hereby gives his/her/its/their express consent to the
Promoters giving such right of way to any of the adjoining
properties or properties in the vicinity and the said consent hereby
given by the Flat Purchaser/s to the Promoters shall be deemed to
be a consent under the provisions of MOFA. The Deed of
Conveyance to be granted in pursuance of this Agreement shall be
granted subject to such right/s of way/s that may be granted by the
Promoters in favour of such owners of the properties in the vicinity.
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13.1. Once again the above clause prima facie records the
individual consent of flat purchasers i.e. members of Society expressly
giving their consent to the Promoter with respect to development of
adjoining properties or properties in the vicinity and any deed of
conveyance granted to them will be subject to the right that may be
granted by the Promoter in favour of the owners of the properties in
the vicinity. Clause 28 expressly records consent of the parties namely
members of the Society which is unconditional and expressed, inter
alia, relating to further development of the balance Suit plot in
question.
14. In the aforesaid background it cannot be open for the Society to
contend that despite such disclosure and express consent having been
given by its members, the Promoter / Developer will not be in a
position to undertake any development on the balance plot any
further. In my opinion it is not open to the Society to take or adopt
such a stand on the strength of the deemed conveyance granted.
Hence in the above facts the deemed conveyance ought to have been
granted only of the constructed building area of the Society Building
No. 1 at the highest and nothing more at this stage until phase 3 was
completed by the Developer. One of the argument of the Society
before me is that the Promoter / Developer has utilized the entire FSI
while constructing building No. 1 and therefore there is no FSI
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available and he is not entitled to undertake any further construction
whatsoever on the balance plot of land insofar as building No. 2 is
concerned for which commencement certificate has been issued by the
Competent Authority in favour of the Developer. This is a
preposterous and illegal submission made by the Society. If the
contention of Respondent No. 1 Society is assumed to be correct then
the Competent Authority would not have issued the commencement
certificate for the third phase by following the due process of law. The
commencement certificate is issued after a thorough scrutiny of the
application made for sanction and approval of the 2nd building plan
by the Promoter / Developer which was made as far back as on
19.11.2019 when the Respondent No. 1 Society was not even born.
Record also indicates that Respondent No. 1 Society was fully aware
about the further plan envisaged by the Developer. This awareness
clearly stems out from the fact that when Society first addressed a
notice on 31.08.2021 to the Promoter / Developer seeking execution
of conveyance deed for the Society apart from its litany of complaints
and demands. Insofar as the execution of the conveyance deed is
concerned, the Society had in paragraph Nos. 5 and 8 of its legal
notice stated as under:-
"5. That, we have called upon you time and again to execute
Sale / Conveyance Deed in respect of the land below said Building
along with proportionate undivided share in the common areas,
amenities and facilities and open spaces. That, till day you have not
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taken any steps to convey the land below said Building in favour of
the society nor showed any willingness to do for the reasons best
known to you.
6. .....
7. .....
8. We further hereby request upon you to complete all the
other pending work as asked by the Society from time to time
including the letter dated 21/11/2019, email Dt. 29/03/2021 and
08/04/2021 regarding accounts and other various correspondences
and also execute Sale / Conveyance Deed in respect of the land
below the said Building along with the superstructures and
buildings thereon from and out of S. No. 256 (part), CTS No
1707(part) in favour of the society along with proportion undivided
share in common areas, amenities and facilities and open spaces etc.
within 15 days from the date of receipt of this Notice failing with we
will be forced to file appropriate legal proceeding against you for
the same which please note."
14.1. Thus it is seen that even according to the Society it had
called upon the Developer to execute conveyance deed in respect of
the land below their building along with proportionate undivided
share in the common areas, amenities and facilities and open space.
In paragraph No. 8 it has sought execution of conveyance but in
respect of the land below its building along with superstructures and
the building thereon from and out of Survey No. 256 (part), CTS No.
1707 (part) in favour of Society along with proportionate entitled
share in the common areas, amenities, facilities and open space.
Though this stance is adopted by Society, grant of deemed conveyance
for the land beneath the building cannot be granted at this stage since
the 3rd phase is incomplete. Hence it cannot be contended that
deemed conveyance granted by Competent Authority is a correct order
with respect to Society having been declared deemed owner of 3422
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sq. mtrs. out of the suit plot since the 3rd phase of development is not
yet completed. As noted earlier, one of the significant reason which is
borne out from the record as to why Society is aggrieved with the
Developer is because of the issue of parking. Record clearly shows that
time and again Society has raised differences and complaints with the
Developer with respect to parking of vehicles of members inside the
Society compound in the open space. The open space adjacent to
Society building No. 1 is claimed to be used by Society members for
parking of their vehicles. Record shows that members of Respondent
No. 1 Society are precluded from parking their vehicles in the said
open space by Developer and this has led to enormous friction and
animosity between parties. It is seen that parking insofar as Building
No. 1 - Palazzo is concerned, has already been provided as per its
sanctioned plan under stilts. Society may be justified in raising its
grievances with respect to dereliction on the part of Promoter /
Developer in not providing the promised amenities or having provided
sub-standard amenities which is gathered from the record, but the
said issues cannot be overlapped and mixed with the issue relating to
grant of deemed conveyance. Deemed conveyance has to be looked at
from the perspective of the existing substantive right of the Promoter -
Owner Developer in the entire suit property. In this case record shows
that Promoter-Developer is the owner of the entire suit plot originally
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admeasuring 3800 square meters situated in Pune along with other
Survey numbers within the Sub-District of Haveli and District Pune.
Record shows that under the sanctioned plan for Pune city, a portion
of land admeasuring 165 sq. mtrs. was shown reserved for 24 meter
vide H.C.M.T.R. whereas the portion admeasuring 87 sq. mtrs. was
shown reserved for Water Body and land was also reserved for DP
Road in teh suit plot. Record shows that Promoter was entitled to the
entire maximum extent of permissible FSI by utilizing all FSI / FAR
(Floor Area Ratio) available in respect of the entire suit plot including
that of the reserved portion of land, additional FSI, incentive FSI,
floating FSI, fungible FSI, FSI of any reserved portion of the land,
transferable development rights in respect of the suit plot qua the
development and construction carried out by it thereon and sold to the
prospective purchasers and allottees thereof.
15. In this background the first phase of construction /
development undertaken by the Developer was with respect to
development of building comprising of stilt and 9 upper floors; stilt for
parking and 9 upper floors for residential flats in respect of which
commencement certificate dated 23.05.2013 was granted. Insofar as
reservation for H.C.M.T.R. area DP Road and Water Body area is
concerned, same has been handed over by Petitioner to Corporation in
lieu of which it has been sanctioned benefit of FSI available for the
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same for utilizing or consuming in the development and construction
carried out by the Promoters on the suit plot. The Promoters therefore
got approved revised plans, revised designs, specifications, elevation,
sections and details of the building proposed to be constructed by
them on the land consisting of stilt for parking and 11 upper floors in
two phases (phase 1 (9 floors) and phase 2 (2 additional floors))
which was sanctioned by Corporation by two separate commencement
certificates dated 23.05.2013 and 11.01.2016 resultantly leading to
completing construction of Building No. 1 known as "The Palazzo". It
is seen that in the respective agreement with members of the Society,
Developer has transparently placed before the members all aforesaid
information which has been accepted by the members and therefore in
that view of the matter, members of the Society now cannot take a
contrary stand which is not maintainable in law to oppose the case of
the Petitioner. Insistence of the members that development potential
of the suit plot available ought to have been stated in their Agreement
to the last available FSI in figures cannot be countenanced. The
Society cannot be benefited by virtue of the impugned order of
deemed conveyance in respect of the area of its building on the suit
plot granted to it which is clearly to the detriment of the right of the
Promoter - Developer since the third phase is yet to be completed. It is
shocking that when the 2nd phase of development was undertaken,
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the members / flat purchasers of Building No. 1 never raised this
grievance about entitlement when the fact situation was absolutely
identical.
16. Mr. Panchpor has vehemently argued on the issue of
disclosure but in view of the specific clauses of the individual
agreements entered into with each member of the Society,
submissions made by Mr. Panchpor cannot be accepted. Even today
when the matter is argued, Mr. Godbole at the outset has informed the
Court that the Developer is not averse to give its consent for grant of
conveyance to the Society in respect of Building No. 1 to the extent of
the constructed area of the said building and to the extent of its
undivided proportionate right in the area of the suit plot or for that
matter conveyance in favour of the Federation of Societies for both
buildings as agreed in the agreements entered into with each member
of the Society in accordance with law. This stand adopted by the
Developer prima facie appears to be correct in law and extremely fair.
The Society's case that it is entitled to the deemed conveyance for the
land as granted and as a result of which the Developer cannot now
construct on the balance available area since Society is declared as
owner of 3422 sq. mtrs. becomes a disputed question which is not
legally tenable and cannot be countenanced.
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17. While the matter is argued by the Society before me, I get
a distinct feeling that the Society is adopting an extortionist attitude
when none of the submissions advanced by Mr. Panchpor are
supported in law. Mr. Panchpor has made a futile attempt to place
reliance on various decisions of the Supreme Court which have been
referred to and relied upon while recording his submissions to argue
that the Developer / Promoter has failed in its endeavour to complete
its obligations under Sections 3 and 4 of MOFA and therefore in that
view of the matter, he is not entitled to put up any construction
whatsoever under the third phase on the open area next to the
building of the Society without the consent of the Society and the said
construction is illegal as no FSI is available and therefore the grant of
deemed conveyance is correct.
18. However in view of the aforesaid observations and findings, I
am not inclined to accept the submissions made by Mr. Panchpor since
the right of the Promoter - Developer cannot be jeopardized in this
fashion before he completes development on the entire suit plot in
accordance with law. Society's complaint that no further FSI is
available and the construction of the 2nd building is illegal can be
dealt with by the Corporation which is the Planning Authority if it is
so. Rather there is no substance in this argument of the Society since
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the Commencement Certificate dated 12.11.2021 issued by the
Corporation is in accordance with law.
19. The impugned order granting deemed conveyance of
3422 sq. mtrs. land out of the suit plot to the Society therefore needs
immediate interference of this Court especially in view of the fact that
development with respect to the third phase by the Promoter -
Developer which was initiated even before the birth of the Society is
not yet completed.
20. In that view of the above, the order granting deemed
conveyance dated 17.06.2022 is interfered with since the Society is
entitled to deemed conveyance only to the extent of the constructed
area of Building No. 1 admeasuring 3648.23 sq. mtrs. at this stage out
of the total area of the suit plot along with all undivided proportionate
rights in the common areas / amenities / common roads on the suit
plot. The deemed conveyance order dated 17.06.2022 is therefore
quashed and set aside and the Competent Authority is directed by
Court to pass a fresh order of deemed conveyance in favour of Society
to the above extent. Needless to state that as agreed by Mr. Godbole,
the Promoter - Developer shall grant conveyance of the land occupied
by the Society (Building No. 1) and Building No. 2 (after its
development) for the land occupied by them either jointly or severally
for the entire area / individual areas as desired by them alongwith
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undivided areas / common areas in accordance with law within a
period of one month after completing development of the 2nd building
and registration of the Society of the 2nd building in accordance with
law.
21. In view of this order, registered deemed conveyance dated
01.07.2022 of the Society is directed to be immediately cancelled and
is quashed and set aside by this Court. Pursuant to the fresh order
being passed for grant of deemed conveyance in terms of the
constructed area of Building No. 1 by the Competent Authority,
Society is permitted to register the same in accordance with law if so
desired.
22. In view of the above observations and findings, Writ
Petition stands allowed in the above terms and disposed.
[ MILIND N. JADHAV, J. ]
23. After the present Judgment & Order is pronounced in
open Court, Mr. Panchpor, learned Advocate for Respondent No. 1 -
Society has requested the Court for stay to the operation of this
judgment & order to enable the Respondent No. 1 Society to approach
the superior Court to test the validity of this judgment. The request is
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granted. Present Judgment & Order is stayed for a period of six weeks
from today to enable the Society to approach the superior Court.
Amberkar
[ MILIND N. JADHAV, J. ]
RAVINDRA MOHAN
MOHAN Date:
AMBERKAR 2025.07.28
14:52:29
+0530
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