[Cites 4, Cited by 0]
Bombay High Court
Kapil Upavan A And B Co Op Housing Soc Ltd. ... vs Monroe Impex Pvt. Ltd. Thr Its Directors ... on 17 March, 2026
Author: Amit Borkar
Bench: Amit Borkar
2026:BHC-AS:12839
wp12638-2022-J.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No.12638 OF 2022
ATUL Kapil Upavan A & B Coop. Housing Society
GANESH
KULKARNI Limited, a registered housing cooperative
Digitally signed by
ATUL GANESH
KULKARNI
society having address at S.No.662/1+2 &
Date: 2026.03.17
12:27:57 +0530 665, Bibwewadi - Katraj, Munjeri,
Chaitraban, Pune 411 037
A. Babanrao Dharmaji Nalawade,
Chairman, Age about 67 years,
Occupation : Retired
R/at: Flat No.A-1103, Survey No.
662/1+2 & 665, Bibwewadi - Katraj,
Munjeri, Chaitraban, Pune 411 037.
B. Vyankatesh Balaji Deshpande,
Chairman, Age about 48 years,
Occupation : Service
R/at: Flat No.A-701, Survey No.
662/1+2 & 665, Bibwewadi - Katraj,
Munjeri, Chaitraban, Pune 411 037. ... Petitioners
V/s.
1. Monroe Impex Private Limited,
having its registered office at
4, Buona Casa, 2nd Floor, Opp.
Kashmir Arts Emporium, Sir P.M.
Road, Fort, Mumbai 400 001.
Through its Directors.
A) Sharad Dattatray Bal,
Age about 64 years,
Occupation: Business,
R/at: Agarkar Bhavan, 2nd Floor,
Navi Peth, Pune 411 030.
1
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B) Vrinda Sharad Bal,
Age about 64 years,
Occupation: Business,
R/at: Agarkar Bhavan, 2nd Floor,
Navi Peth, Pune 411 030.
2. Avinash Shridhar Wardekar,
since deceased, through legal heirs
A) Sima Hemant Shirali,
Age- Adult, Occu.: Business,
R/at - 105/25, Prabhat Road,
14th Lane, Pune 411 004.
B) Manju Avinash Wardekar,
Age- Adult, Occu.: Business,
R/at - 105/25, Prabhat Road,
14th Lane, Pune 411 004.
C) Soumitra Avinash Wardekar,
Age- Adult, Occu.: Business,
R/at - 105/25, Prabhat Road,
14th Lane, Pune 411 004.
3. Pankaj Dyes & Chemicals Pvt. Ltd.,
A private limited company, having
its registered office at 4, Buona Casa,
2nd Floor, Opp. Kashmir Arts
Emporium, Sir P.M. Road, Fort,
Mumbai 400 001.
Through its Director
Vrinda Sharad Bal,
Age about 64 years,
Occupation: Business,
R/at: Agarkar Bhavan, 2nd Floor,
Navi Peth, Pune 411 030
4. District Deputy Registrar, Coop.
Housing Society, Pune City, Sakhar
Sankul, Shivaji Nagar, Pune 411 005
5. State of Maharashtra,
2
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through the office of Government
Pleader, High Court, Bombay ... Respondents
Mr. Anil Anturkar, Senior Advocate with Mr. Tejesh
Dande, Mr. Abhang, Mr. Bharat Gadhvi, Mr. Satyajeet
Salve, Mr. Jeevan Vidya Joshi, Mr. Parth Talekar and
Mr. Aniket Shitole i/by Tejesh Dande & Associates for
the petitioners.
Mr. Siddhesh Bhoe with Mr. Ashwin Pimpale i/by SSB
Legal & Advisory for respondent Nos.1 and 3.
Mrs. M.S. Srivastava, AGP for respondent Nos.4 and 5-
State.
CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 12, 2026.
PRONOUNCED ON : MARCH 17, 2026
JUDGMENT:
1. The present writ petition has been filed under Article 227 of
the Constitution of India challenging the judgment and order
dated 22 March 2021 passed by respondent No.4 in exercise of
powers under Section 11(4) of the Maharashtra Ownership Flats
Act, 1963. By the said order, the competent authority partly
allowed the application for deemed conveyance and modified the
area of conveyance from 4100 square meters to 7269 square
meters.
2. The background facts, according to petitioner, giving rise to
the present petition may briefly be noted. A Development Plan
layout dated 20 July 2019 was prepared pursuant to
Commencement Certificate No.426 of 2006 in respect of lands
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bearing Survey No.662/1+2 admeasuring approximately 13 Acres
and 27 Gunthas and Survey No.665 admeasuring approximately
11 Acres and 5 Gunthas situated at Village Bibwewadi, Taluka
Haveli, District Pune. These lands together admeasure about 24
Acres and 32 Gunthas. The layout plan relating to the said lands
was revised from time to time in accordance with the sanctioned
development permissions. Under the said DP layout plan the entire
land was divided into seven phases. The dispute in the present
proceedings relates to Phase V of the layout. The land forming part
of Phase V admeasures in all 9,607.50 square meters and
constitutes a portion of the larger parcel described above.
3. The ownership history of the larger land shows that the
original owner, Mr. Pandurang B. Kadam, sold the property to
Western India Erectors Ltd. by a registered sale deed dated 3 June
1981. In the year 1982 the name of the said company was changed
to Western India Enterprises Ltd. Subsequently, Western India
Enterprises Ltd. executed a registered lease deed dated 12 April
1989 in favour of respondent No.2, Mr. Avinash Wardekar,
granting leasehold rights over the entire land for a period of 999
years. Under the terms of the lease, respondent No.2 was
authorized to undertake construction and development on the said
land and was also entitled to transfer or assign his leasehold
interest in whole or in part. By order dated 25 October 2002 the
Collector, Pune permitted the use of the said land for non-
agricultural purposes. It further appears that certain entities
associated with respondent No.2 had obtained financial assistance
from Janata Sahakari Bank Ltd., Pune. Upon failure to repay the
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loan amounts, the bank instituted two proceedings before the Co-
operative Court at Pune. In settlement of those proceedings
respondent No.2 agreed to mortgage a portion of land
admeasuring 5.60 Acres out of the larger property in favour of the
bank. Accordingly, a mortgage deed was executed on 31 March
1999 and subsequently registered on 25 August 2000. Thereafter,
with the consent of the bank, respondent No.2 entered into
development arrangements with respondent No.1, Monroe Impex
Pvt. Ltd., and respondent No.3, Pankaj Dyes and Chemicals Pvt.
Ltd. In pursuance thereof, respondent No.2 executed development
agreements and corresponding powers of attorney dated 31 March
2006 and 3 April 2006 in favour of respondent No.1. These
documents were registered before the Joint Sub-Registrar, Haveli
No.1 on 5 April 2006. Similarly, development agreements dated 29
March 2006 and 3 April 2006 together with a power of attorney
were executed in favour of respondent No.3 and were also
registered on 5 April 2006. The documents on behalf of
respondent No.1 were executed by Mr. Sharad Bal and Mrs. Vrinda
Bal as directors of the company, who were also appointed as
attorneys under the powers of attorney. By virtue of these
development agreements, respondent Nos.1 and 3 obtained
development rights in respect of portions of the project land
aggregating to about 9,607.50 square meters. Although the
development rights were granted to two different corporate
entities, the project land itself remained a single consolidated
parcel governed by a common layout. On the said land three
buildings, namely, Wing A, Wing B and Wing C, were constructed.
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Wings A and B comprise residential buildings while Wing
comprises commercial premises. The layout also provides for
various parking facilities including parking on the stilt floors,
basement areas and podium spaces between the buildings.
4. Subsequently, building plans were sanctioned by the Pune
Municipal Corporation pursuant to Commencement Certificate
dated 12 February 2007, permitting construction of the residential
buildings Wing A and Wing B and the commercial building Wing
C. The sanctioned plans were later revised by Commencement
Certificate dated 25 June 2009 which permitted construction of
residential built-up area of 7,269.90 square meters for Wings A
and B and commercial built-up area of 4,675.20 square meters for
Wing C by applying a higher FSI permissible for IT buildings.
Disputes later arose regarding conveyance of the land
corresponding to the residential buildings, leading the petitioner
society to seek deemed conveyance under Section 11 of the
Maharashtra Ownership Flats Act. After earlier proceedings and
remand by this Court, respondent No.4 by order dated 22 March
2021 partly allowed the application and granted unilateral deemed
conveyance in favour of the petitioner in respect of land
admeasuring 4100.60 square meters corresponding to the built-up
area of 7,269.90 square meters.
5. Learned Senior Advocate Mr. Anturkar submitted that
respondent No.3, namely Pankaj Dyes and Chemicals Pvt. Ltd.,
would fall within the extended meaning of the expression
"promoter" under the Maharashtra Ownership Flats Act. He
pointed out that in the affidavit in reply filed by respondent No.1,
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as well as in the proceedings before the competent authority, it has
been clearly acknowledged that the development of the project
was undertaken on the basis of a joint layout and that the building
permission plan was also obtained jointly by Monroe Impex Pvt.
Ltd. and Pankaj Dyes and Chemicals Pvt. Ltd. According to him,
the construction of Buildings A, B and C was carried out pursuant
to a common layout and a common sanctioned building plan. The
development was therefore in the nature of a joint development
undertaken by both entities. He further submitted that the same
individuals, namely Mr. Sharad Bal and Mrs. Vrinda Bal, are the
controlling persons behind both companies. In such circumstances,
even if respondent No.3 has not executed flat purchase agreements
with the purchasers, its active participation in the development
activity and its role in causing construction of the buildings would
bring it within the statutory definition of a promoter.
6. Learned Senior Counsel further submitted that the
sanctioned building plans clearly indicate that the total area of the
project plot is 9,607.50 square meters forming a single
consolidated plot under the DP Layout Plan. The permissible FSI
on the said plot is 9,607.50 square meters, with FSI of 1 applicable
for residential construction. Out of this total FSI, residential FSI to
the extent of 7,269.90 square meters has been utilised for
construction of Buildings A and B belonging to the petitioner
society. According to him, the land required for generation of such
FSI must necessarily correspond to 7,269.90 square meters. The
remaining land area of 2,337.60 square meters has been utilised
for the IT building, namely Building C, which is entitled to an
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incentive FSI multiplier of 2 resulting in construction of 4,675.20
square meters. He submitted that the sanctioned building plans
clearly reflect this distribution of FSI and built-up area, thereby
establishing that the land utilised for construction of Buildings A
and B is 7,269.90 square meters and not merely 4,100.60 square
meters as suggested by the respondents.
7. Learned Senior Counsel further argued that the inquiry
under Section 11 of the Act is limited in scope and that the
competent authority is required to consider primarily the flat
purchase agreements and the sanctioned building plans. According
to him, documents such as development agreements executed
between the original land owner and the promoter, or other
arrangements inter se between the parties, are not relevant for the
limited purpose of deciding an application for deemed conveyance.
He also submitted that the respondents' contention that the flat
purchase agreements contemplated conveyance only of the
property described as "Schedule III property" is misconceived.
Clause 16 of the flat purchase agreement, which governs the
obligation of conveyance, uses the expression "the land" and not
"the said property". This distinction, according to him, clearly
indicates that the conveyance obligation cannot be restricted to the
property described in Schedule III.
8. Learned Senior Counsel further submitted that no
conveyance deed has been executed either in respect of Building
or in favour of any condominium or association of apartment
owners of Building C. He contended that under Section 11(1) of
the Maharashtra Ownership Flats Act the promoter is under a
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statutory obligation to execute a conveyance in favour of the co-
operative society or the association or condominium of apartment
owners. In the absence of such conveyance, title to the land does
not pass. He also submitted that the deed of declaration relied
upon by respondent No.3 was executed during the pendency of
earlier proceedings initiated by the petitioner under Section 11
and therefore cannot defeat the petitioner's claim by reason of the
doctrine of lis pendens. According to him, proceedings under
Section 11 are not intended to adjudicate disputes between third
parties, and the mere possibility that some third party may be
affected cannot justify refusal to exercise jurisdiction under the
said provision, particularly when the object of Section 11 is to
provide a speedy and effective remedy to flat purchasers for
securing conveyance of the land and building.
9. Learned Advocate Mr. Bhole appearing on behalf of
respondent No.2 submitted that the present writ petition has been
filed challenging the order dated 23 March 2021 passed by
respondent No.4 in exercise of powers under Section 11(4) of the
Maharashtra Ownership Flats Act, 1963. By the said order, the
competent authority granted deemed conveyance in favour of the
petitioner society in respect of land admeasuring 4100.60 square
meters and issued the requisite certificate under the statutory
provision. Learned counsel submitted that the impugned order
correctly reflects the extent of land that could lawfully be
conveyed to the petitioner society.
10. Elaborating the factual background, learned counsel
submitted that the larger property comprises land bearing Survey
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No.662 Hissa No.1+2 admeasuring 13 Acres and 24 Gunthas
together with land bearing Survey No.665 admeasuring 11 Acres
and 5 Gunthas situated at Village Bibwewadi, Taluka Haveli,
District Pune, aggregating to 24 Acres and 32 Gunthas. The said
land originally belonged to Mr. Pandurang B. Kadam and was
subsequently sold to Western India Erectors Ltd. under a registered
sale deed dated 3 June 1981. Thereafter, the said company
executed a registered lease deed dated 12 April 1989 granting
leasehold rights over the property to Mr. Avinash S. Wardekar for a
period of 999 years. It was further submitted that Mr. Wardekar
had mortgaged a portion of the said land to Janata Sahakari Bank
Ltd., Pune and, with the consent of the bank, entered into
development agreements with respondent No.1 Monroe Impex Pvt.
Ltd. and respondent No.3 Pankaj Dyes and Chemicals Pvt. Ltd. The
development agreements executed in favour of respondent No.1
related to a net developable area of 4100.60 square meters,
whereas development rights in respect of a separate portion of
land were granted to respondent No.3 for construction of the IT
building. Learned counsel submitted that the FSI referred to in the
development agreements corresponds with the FSI figures
reflected in the flat purchase agreements and sanctioned building
plans. Out of the total FSI generated for the project, 7,269.90
square meters was utilised for construction of residential buildings
on the subject land and 4,675.20 square meters was utilised for
construction of the IT building, part of which was generated by
application of incentive FSI and TDR.
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11. Learned counsel further relied upon the Government
Resolution dated 22 June 2018 and submitted that the said
resolution specifically clarifies that where TDR has been utilised in
a layout, the conveyance of the building is to be granted only with
reference to the plinth area and the appurtenant land and not
proportionate to the entire built-up area generated through
additional FSI. He submitted that this principle has also been
recognised by this Court in Marathon Era Co-operative Housing
Society Ltd. v. Competent Authority and District Deputy Registrar,
Co-operative Societies, reported in 2024 SCC OnLine Bom 1115 .
Learned counsel also submitted, on instructions, that as per the
prevailing Unified Development Control and Promotion
Regulations additional FSI to the extent of 14,762.16 square
meters is presently available on the subject land.
12. It was further contended that the jurisdiction exercised by
the competent authority under Section 11 of the Maharashtra
Ownership Flats Act is summary in nature and does not extend to
adjudication of complicated questions relating to title. Learned
counsel pointed out that respondent No.3 is not a party to the sale
agreements executed with the flat purchasers and is not a
signatory to such agreements. According to him, respondent No.3
cannot therefore be treated as a promoter within the meaning of
the Act. He further submitted that respondent No.3 has already
executed a Deed of Declaration dated 6 November 2019 under the
Maharashtra Apartment Ownership Act, thereby creating
undivided interests in the IT land in favour of apartment owners.
In such circumstances, any conveyance in favour of the petitioner
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society beyond the area of 4100.60 square meters, which
corresponds to the land upon which Buildings A and B were
constructed by respondent No.1, would exceed the land available
with the promoter and would fall outside the jurisdiction of the
competent authority under Section 11. Learned counsel therefore
submitted that the impugned order does not suffer from any legal
infirmity and that the writ petition is liable to be dismissed with
costs.
REASONS AND ANALYSIS:
13. The record placed before the Court clearly indicates that the
two companies involved in the present dispute are separate
corporate entities. Monroe Impex Pvt. Ltd. is shown as one
promoter in the development documents, while Pankaj Dyes and
Chemicals Pvt. Ltd. is shown as another promoter. Both companies
hold development agreements executed in their own names. These
agreements are duly registered and relate to particular portions of
the larger parcel of land. The documents do not show a single
combined grant of development rights in favour of both companies
together. Instead, each company appears in the record with its own
agreement and with rights referable to specific parts of the project
land.
14. It is true that certain individuals who represented these
companies appear to be common. However, that fact by itself
cannot lead to the conclusion that both companies are legally the
same entity. In company law, a company has its own legal identity
which is separate from the individuals who control it. The mere
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fact that the same persons may act for two companies does not
merge their legal existence. Therefore, on the basis of the
documents on record, Monroe Impex Pvt. Ltd. and Pankaj Dyes
and Chemicals Pvt. Ltd. must be treated as separate promoters for
the purposes of examining the present dispute.
15. The larger land involved in the project is situated within the
development plan area of Bibwewadi village in Pune district. The
development of this land has taken place under permissions
granted by the planning authority. The commencement certificates
and sanctioned plans were issued by the Pune Municipal
Corporation. They show how the development was approved and
how the built-up area was distributed between different buildings.
The sanctioned plans also indicate how the Floor Space Index and
built area were allocated between the residential buildings and the
IT building forming part of the same layout.
16. The documents show that Janata Sahakari Bank Ltd. was
involved in the project because a portion of the land was
mortgaged in its favour. The mortgage deeds and the bank's
written consents permitting development form part of the chain of
title. These documents indicate that the promoters were required
to act within the limits permitted under the mortgage
arrangements.
17. The legal position governing proceedings under Section 11
of the Maharashtra Ownership Flats Act is fairly settled.
Proceedings under Section 11 are of a summary nature. The
competent authority exercising powers under that provision is not
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expected to conduct a detailed trial or adjudicate complex disputes
of title. The authority examines limited issues. In doing so, it
primarily looks at the sanctioned building plan and the agreements
executed with the flat purchasers. These documents show the
nature of the construction that was sanctioned and the rights that
were promised to the purchasers at the time of sale. Other
documents, such as development agreements or arrangements
between different promoters, may provide background. However,
they are not the material for deciding an application under Section
11.
18. The petitioner in the present case relies mainly upon the
sanctioned building plans and the flat purchase agreements. On
the basis of these documents, the petitioner seeks conveyance of
land which, according to it, corresponds to the built-up area of the
residential buildings. However, it must be noted that the
competent authority has already granted a certificate of deemed
conveyance in favour of the petitioner society. The certificate
relates to the land corresponding to the built-up area recorded in
the proceedings before the authority. The figures noted by the
competent authority show that the conveyance relates to land of
4100.60 square metres and to the built-up area figure of 7263.90
square metres connected with the petitioner's buildings.
19. The material on record shows that the competent authority
treated respondent No.1 and respondent No.3 as separate
promoters. The development agreements executed in favour of
each company are separate documents. Each agreement bears its
own registration details and serial entries in the registration
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records. They are executed in favour of different legal persons. In
such circumstances, the competent authority could not have simply
ignored these documents and treated both companies as a single
promoter. To do so would have required a deeper inquiry into the
relationship between the companies and their internal
management.
20. It is necessary at this stage to consider the principle known
as lifting the corporate veil. This principle allows a court, in
exceptional circumstances, to disregard the separate legal
personality of a company and examine the real persons behind it.
However, this power is exercised only in limited situations where
the facts clearly justify such intervention. The normal rule of law is
that a company has an independent legal existence. Therefore, the
corporate veil is not lifted lightly or casually. The power to lift the
corporate veil is usually exercised by courts having full jurisdiction
to examine complex questions of fact and law. Such examination
often requires detailed evidence and a careful study of the entire
chain of transactions. A competent authority acting under Section
11 does not exercise such wide powers. The authority's function is
confined to deciding whether the society is entitled to conveyance
of the land connected with the building constructed and sold to
flat purchasers.
21. The Court must also note the deed of declaration executed
by respondent No.3 during the pendency of earlier proceedings.
That document relates to a separate legal arrangement concerning
the IT building. The existence of that instrument may give rise to
questions regarding competing claims over certain portions of the
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land. In the present case, determining the legal effect of such a
declaration would require a full examination of evidence and
competing claims, which is the function of a civil court.
22. Another relevant aspect arises from the Government
Resolution dealing with Transferable Development Rights and the
applicable municipal rules. These provisions indicate that when
additional FSI is generated through TDR or IT incentives, the land
required to be conveyed for residential buildings must normally
correspond to the plinth area and the appurtenant land connected
with those buildings.
23. In view of the above reasoning, the petition cannot succeed.
The Court cannot expand the scope of Section 11 proceedings so
as to undertake a full restructuring of the title position of the
project land or to disregard the separate legal existence of the
companies involved. If the petitioner believes that additional land
is legally required to be conveyed, or if it contends that the
corporate structure of the promoters has been used in a manner
that justifies lifting the corporate veil, the petitioner must
approach a competent civil court. In such a suit, all concerned
parties can be joined.
24. For the reasons recorded in the foregoing discussion, the writ
petition fails and is accordingly dismissed.
(i) The Judgment and Order dated 22 March 2021 passed
by respondent No.4 in exercise of powers under Section
11(4) of the Maharashtra Ownership Flats Act, 1963,
granting unilateral deemed conveyance in favour of the
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petitioner society in respect of land admeasuring 4100.60
square meters corresponding to 7269.90 square meters of
built-up area, is hereby confirmed.
(ii) It is clarified that if the petitioner society claims
entitlement to any additional land beyond 4100.60 square
meters, such claim would necessarily involve adjudication of
disputed questions relating to title and corporate structure.
The petitioner shall be at liberty to pursue such relief by
instituting appropriate civil proceedings before a competent
civil court. All contentions of the parties in that regard are
kept open.
(iii) The dismissal of the present petition shall not preclude
the petitioner or any other party from agitating their
independent rights, if any, in appropriate proceedings in
accordance with law.
(iv) In the event such civil proceedings are instituted, the
civil court shall decide the same on its own merits and in
accordance with law, uninfluenced by any observations made
in the present judgment and order.
25. In the facts and circumstances of the case, there shall be no
order as to costs.
26. Rule stands discharged. Pending applications, if any, stand
disposed of.
(AMIT BORKAR, J.)
