Bombay High Court
ARIISTO REALTORS PRIVATE LIMITEDversusDISTRICT DEPUTY REGISTRAR COOPERATIVE SOCIETIES AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- SANDEEP V MARNE
Holding
The Competent Authority did not exercise a power of review; it merely acted on the liberty granted to file a fresh application, so the order of deemed conveyance stands.
Summary
The developer Ariisto Realtors built the Ariisto Cloud building on land covered by a 2010 Development Agreement with the landowners and sold flats to buyers who formed Respondent No.2 society. The society applied for a certificate of unilateral deemed conveyance of the land under Section 11 of the Maharashtra Ownership Flats Act; the first application was rejected as premature because construction was incomplete and unutilised FSI remained, but the authority granted liberty to file a fresh application. The society filed a second application, which the Competent Authority allowed, granting the certificate of deemed conveyance. The developer challenged this order, arguing that the authority had exceeded its jurisdiction by reviewing its earlier order and that the liberty was conditioned on completion of construction and utilisation of additional FSI. The Court held that the authority had not exercised a power of review but merely exercised the liberty it had granted, and therefore the second order was valid. Consequently, the petition was dismissed and no relief was granted to the developer.
Issues considered
- The Competent Authority’s jurisdiction to entertain a second application for deemed conveyance after rejecting the first application.
- Whether the authority exercised a power of review not conferred by the Maharashtra Ownership Flats Act.
- Whether the liberty to file a fresh application was conditioned on completion of construction and utilisation of additional FSI.
Legislation cited
Subjects
- jurisdiction
- power of review
- deemed conveyance
- MOFA
- additional FSI
- res judicata
- natural justice
- Article 227
- cooperative societies
- developer
- housing society
Judgment
Neeta Sawant WP 12863 of 2025
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12863 OF 2025
Ariisto Realtors Private Limited ...Petitioner
V/s.
District Deputy Registrar, Co-operative ...Respondents
Societies, Mumbai and Ors.
________________
Mr. Chetan Kapadia, Senior Advocate with Mr. Aman Kacheria, Mr.
Bhavik Mehta and Ms. Hetal Jobanputra i/b Dhruve Liladhar & Co. for
the Petitioner.
Ms. Vinodini Srinivasan i/b Prakash & Co. for Respondent Nos. 2 to 5.
Ms. Vaishali S. Nimbalkar, AGP for Respondent-State.
________________
CORAM: SANDEEP V. MARNE, J.
JUDGMENT RESD. ON: 9 JULY 2026
JUDGMENT PRON. ON: 17 JULY 2026
JUDGMENT:
1) The Petition is .led by a developer who is opposing
conveyance of the land in favour of the organization of 0at purchasers
with a view to exploit the additional FSI arising from the land due to
change in the FSI regime.
2) The Petitioner-Developer has .led the present Petition
challenging the Order dated 14 July 2025 passed by the District Deputy
Registrar, Co-operative Societies, Mumbai City (3) and Competent
Authority (Competent Authority) granting certi.cate of unilateral
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deemed conveyance of the land and the building in favour of Respondent
No.2-society. The main grievance of the Petitioner is about jurisdiction
exercised by the Competent Authority in entertaining second
application for deemed conveyance after rejection of the .rst application
vide order dated 10 March 2025.
3) Petitioner is a developer in whose favour Development
Agreement dated 3 March 2010 and Supplementary Deed dated 3 March
2010 was executed by Respondent No. 3 to 5/ their predecessors in title
in respect of land bearing Survey No.161A/2, Hissa-4 (Part) and 4B
(Part), Survey No.161A, Hissa No.7 (Part), 9, 10, 11 (part) and 12, CTS
No.1520/A, Village-Vile Parle (West), S.V. Road, Mumbai-400 056. In
pursuance of the Development Agreement, the Petitioner constructed
building known as ‘Ariisto Cloud’ on the subject land. It appears that
another building was already constructed by a different developer on the
subject land in respect of which Kum Kum Apartments Cooperative
Housing Society Limited (Kum Kum Society) is formed. It appears that
there were some disputes between the Petitioner, landowners and Kum
Kum Society and accordingly, a Tripartite Deed of Irrevocable Perpetual
Lease dated 9 September 2011 was executed in favour of Respondent
No.6, under which Respondent No.6 was permitted to use a total FSI not
exceeding 2674.13 sq.m. and all the additional FSI was to be utilised
solely by the Petitioner. Though the future additional FSI and TDR was
to exclusively belong to the landowners, Petitioner was given the right to
utilise the same by paying additional consideration @Rs.51,000/- per
sq.m. to the landowners.
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4) Petitioner entered into Agreements for Sale under Section 4
of Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management And Transfer) Act, 1963 (MOFA) with
the 0at purchasers of the building Ariisto Cloud. Petitioner completed
the construction of the building Ariisto Cloud comprising ground plus 9
upper 0oors, 12 residential 0ats, one commercial unit and 2 commercial
shops. Flat purchasers of Ariisto Cloud building have formed Respondent
No. 2 Society.
5) Petitioner claims that additional FSI of 841.16 sq.m. was
made available in terms of Development Control and Promotion
Regulations, 2034 (DCPR, 2034). Petitioner claims that it has .led
application dated 23 October 2024 with the Municipal Corporation for
utilisation of additional FSI of 841.16 sq.m. on the subject property.
According to the Petitioner, landowners are also members of
Respondent No.2-society and that both have got together for the
purpose of defeating Petitioner’s right to exploit additional FSI on
payment of consideration agreed in the Development Agreement. After
demanding conveyance vide letter dated 16 August 2024, Respondent
No.2-society .led Application No. 179 of 2024 seeking unilateral deemed
conveyance of the subject land. The Application was resisted by the
Petitioner by .ling af.davit in reply. By order dated 10 March 2025, the
Competent Authority rejected Application No.179 of 2024 on the ground
that the same was premature since construction of the building was
incomplete and Petitioner was yet to consume unutilised FSI
admeasuring 81.03 sq.m. as well its entitlement to utilise additional FSI
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by paying premium to the owner @Rs.51,000/- per sq.m. The society
was, however, granted liberty to .le a fresh application.
6) Respondent No.2-society .led fresh Application No. 56 of
2025 once again claiming deemed conveyance in respect of the subject
land on the ground that the building had already received completion
certi.cate and that the balance FSI was only 3.25 sq.m. Petitioner
opposed the second application for deemed conveyance inter alia on the
ground of res judicata. However, the Competent Authority has allowed
the Application No. 56 of 2025 by impugned order dated 14 July 2025 and
granting certi.cate of unilateral deemed conveyance of land
admeasuring 1241.65 sq.m. from the larger Plot bearing CTS No. 1520/A
alongwith the building standing thereon. The Petitioner is aggrieved by
order dated 14 July 2025 and has accordingly .led the present Petition.
7) Mr. Kapadia, the learned Senior Advocate appearing for the
Petitioner, submits that the impugned order dated 14 July 2025 passed
by the Competent Authority is without jurisdiction. That the Competent
Authority has exercised the power of review while passing the impugned
order, which it does not have. That the Competent Authority has
virtually modi.ed its .ndings about the exact unconsumed FSI,
incomplete construction of building and Petitioner’s right to utilise
future additional FSI while passing the impugned order. He submits that
the second application for deemed conveyance was not maintainable as
the eventualities for exercising the liberty granted in the order dated 10
March 2025 were yet to occur. That the liberty was exercisable only after
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Petitioner utilised the balance unconsumed FSI and future additional
FSI. That, however, society .led second application for deemed
conveyance within 3 months of rejection of the .rst application. Mr.
Kapadia further submits that the issue involved in the petition is
squarely covered by judgment of the Apex Court in Faime Makers Pvt.
Ltd. vs. District Deputy Registrar, Co-operative Societies (3), Mumbai 1
wherein in similar circumstances, this Court set aside order passed by
the competent authority entertaining second application by exercising
power of review after rejection of the .rst application. He also relies on
judgment of this Court in B.K. Corporation vs. State of Maharashtra
and Ors.2 In support of his contention that power of review is not an
inherent power of the Court and that quasi-judicial authorities can
exercise only those powers which are expressly conferred on them by the
statute, he relies on judgment of the Apex Court in State of West Bengal
and Ors. Vs. Jai Hind Pvt. Ltd.3
8) Mr. Kapadia further submits that the Competent Authority
has erroneously relied on the so-called consent terms dated 16 June 2025
executed between Respondent No.2-society and Respondent Nos.3 to 5.
That the consent terms are shown to have been executed in Application
No.179 of 2024, which was already disposed of on 10 March 2025. That
thus, the alleged consent terms are shown to have been executed in
disposed of proceedings. He submits that Respondent Nos.3 to 5 have
now joined hands with Respondent No.2-society for the purpose of
escaping the obligations arising out of the covenants of the
1
(2025) 5 SCC 772
2
Writ Petition No. 2453 of 2018 decided on 9 June 2026
3
(2026) 5 SCC 481
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Development Agreement. That the landowners are avoiding contractual
obligations by enforcing conveyance in favour of the society acting in
their capacity as members.
9) Mr. Kapadia further submits that Petitioner did not receive
notice of second Application No.56 of 2025, which is decided without
grant of opportunity of hearing to the Petitioner. That since the order
passed is in gross violation of principles of natural justice, the impugned
order deserves to be set aside. Mr. Kapadia, therefore, prays for setting
aside the impugned order dated 14 July 2025 passed by the Competent
Authority.
10) Ms. Vinodini Srinivasan, the learned counsel appearing for
Respondent Nos.2 to 5, opposes the Petition. She submits that the
Petitioner was duly served with the notice of Application No.56 of 2025.
That there are records of postal acknowledgement and published notices
on the .le of the Competent Authority. She further submits that the
second application for deemed conveyance (Application No. 56 of 2025)
was .led in terms of liberty granted vide order dated 10 March 2025.
That the entire construction of the building is complete as per the
sanctioned plans. That building completion certi.cate has been issued
by the Municipal Corporation on 23 February 2015. That the Competent
Authority had granted liberty to .le fresh application after completion of
construction. That the liberty did not mean that the fresh application
was to be .led after consumption of additional FSI by the Petitioner. She
invites my attention to Clause 23.3 of MOFA Agreement, under which
the Petitioner agreed to convey the land and the building upon sale of all
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0ats in the building. That in Section 4 Agreement executed with the
purchasers, there is no arrangement of further construction by
utilisation of future additional FSI. That the so-called arrangement with
the landowners in the Development Agreement does not bind the 0at
purchasers of the society. That in any case, Petitioner has not paid the
agreed amount to the landowners nor has exercised the option of
utilising the additional FSI. She submits that the future additional FSI
now claimed by the Petitioner 0ows out of change in FSI regime and it is
impermissible for the Petitioner to deny conveyance on the ground of
availability of future additional FSI. She relies on judgment of this Court
in Flagship Infrastructure Ltd. vs. The Competent Authority4 in support
of her contention that conveyance needs to be executed within a period
of 4 months of registration of the society as speci.ed in Rule 9 of MOFA
Rules and that the period speci.ed in the agreement for sale for
conveyance does not mean inde.nite time till the developer continues to
utilize future additional FSI.
11) Lastly, Ms. Srinivasan submits that this Court need not
interfere in the impugned order in exercise of extraordinary jurisdiction
under Article 227 of the Constitution of India. She submits that setting
aside the impugned order would revive illegal order dated 10 March
2025. In support, she relies on judgment of the Apex Court in Gadde
Venkateswara Rao vs. Government of Andhra Pradesh and Ors. 5 and
Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar and Ors. 6
Ms. Srinivasan prays for dismissal of the Petition.
4
Writ Petition No.151 of 2019 decided on 15 April 2025
5
1965 SCC Online SC 25
6
(1999) 8 SCC 16
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12) I have also heard Ms. Nimbalkar, the learned AGP appearing
for the State.
13) Rival contentions urged on behalf of the parties now fall for
my consideration.
14) The main point urged by the Petitioner for challenging the
impugned order of deemed conveyance dated 14 July 2025 is about the
jurisdiction of the Competent Authority in entertaining second
application for deemed conveyance after rejection of the .rst application
vide order dated 10 March 2025.
15) In the present case, Respondent No. 2-society had .led
Application No.179 of 2024 seeking conveyance of the land and the
building under Section 11(3) of MOFA. The Application was opposed by
the Petitioner contending inter alia that it is yet to exploit the
development potential in the land. Accepting the objection raised by the
Petitioner, the Competent Authority rejected Application No.179 of 2024
holding the same to be premature by its order dated 10 March 2025. The
Competent Authority held that the construction of the existing building
is incomplete in respect of the ground and the .rst 0oors. It was held
that the Petitioner is yet to exploit unutilised FSI admeasuring 81.03
sq.m. Thirdly, it was held that Petitioner is entitled to utilise additional
FSI by paying premium to the owner @Rs.51,000/- per sq.m. The society
was, however, granted liberty to .le a fresh application.
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16) It appears that after rejection of the Application No. 179 of
2024, consent terms were arrived at between the landowners
(Respondent Nos. 3 to 5) and Respondent No. 2-Society on 16 June 2025,
under which the landowners expressed willingness to convey the land in
favour of the Society. Respondent Nos. 3 to 5 apparently own 0ats in the
building of the society and the Petitioner accuses collusion between the
landowners and the society in entering into the consent terms.
17) After the consent terms, Respondent No.2-society .led
fresh Application No. 56 of 2025, once again claiming deemed
conveyance in respect of the subject land on the ground that the
building had already received completion certi.cate and that the balance
FSI was only 3.25 sq.m. and not 81.03 sq.m. as claimed by the Petitioner.
Petitioner opposed Application No. 56 of 2005 inter alia on the ground of
res judicata. However, the Competent Authority has allowed the
Application No. 56 of 2025 by Order dated 14 July 2025 and has granted
certi.cate of unilateral deemed conveyance of land admeasuring 1241.65
sq.m. from the larger Plot bearing CTS No. 1520/A alongwith the
building standing thereon in favour of Respondent No. 2 society.
18) In the light of the above position, Petitioner has challenged
the Order dated 14 July 2025, contending that the same is without
jurisdiction as the Competent Authority has reviewed its earlier Order
dated 10 March 2025, which power it does not have.
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19) By now, the law is well-settled that power of review is not
an inherent power and it needs to be conferred on the Court, Tribunal or
quasi-judicial authority by a statute. It is also settled that the competent
authority exercising quasi-judicial powers under Section 11 of MOFA
cannot exercise power of review, which is not expressly conferred on it.
Mr. Kapadia is right in relying on the judgment of the Apex Court in
State of West Bengal vs. Jai Hind Pvt. Ltd. (supra), in which it has held
in paras-41, 72 and 73 as under:
41. It is well-settled that the power of review is not an inherent power of the
Court. It is also equally well settled that quasi-judicial authorities can exercise
only those powers which are expressly conferred upon them by the statute.
Hence, the power of review, which is not inherent, must be conferred upon the
quasi-judicial authority by means of a speci.c provision in the statute.
***
72. At a more fundamental level, allowing a Revenue Of.cer to review its own
concluded quasi-judicial order would trench upon the constitutional doctrine
of separation of powers, which constitutes part of the basic structure of the
Constitution. Though vested with limited adjudicatory functions, authorities
under the WBEA Act, 1953, remain essentially members of the executive
branch and are neither part of the judicial organ nor equipped with the
institutional safeguards that attend judicial of.ce, such as independence from
executive control.
73. The power of review is essentially a core judicial function, and conferring
such a power upon executive authorities, absent an express legislative
mandate, would blur the constitutionally mandated demarcation between the
executive and the judiciary, permit the executive authorities to sit in judgment
over their own decisions, and erode the Rule of Law by diluting .nality. Any
contrary construction would, therefore, be inconsistent with legislative intent
and would impermissibly encroach upon the basic structure of the
Constitution.
20) In the context of exercise of power of review by the
Competent Authority under Section 11 of MOFA, there is a direct
judgment of the Apex Court in Faime Makers Pvt. Ltd. (supra), in which
it is held that the Competent Authority cannot exercise the power of
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review. The judgment of the Apex Court in Faime Makers Pvt. Ltd. is
followed by this Court in B.K. Corporation (supra). The ratio of both the
judgments in discussed in latter part of the judgment.
21) Mr. Kapadia has contended that by following settled
position of law as enunciated in the judgment of the Apex Court in
Faime Makers Pvt. Ltd. and of this Court in B.K. Corporation, the order
passed by the Competent Authority on 14 July 2025 in second
application deserves to be set aside. However, it needs to be examined
whether the Competent Authority has exercised the power of review in
the present case and whether the ratio of judgments in Faime Makers
Pvt. Ltd. and B.K. Corporation can be applied to the facts of the present
case. It is well-settled principle of law that judgment is an authority for
what it decides and not what can be logically deduced therefrom. [SEE:
Commissioner of Customs (Port), Chennai vs. Toyota Kirloskar Motor
(P) Ltd.7 and Secundrabad Club and Ors. Vs. CIT and Ors. 8]. Judgments
are not to be read as Euclid’s theorem nor as provisions of a statute.
Even little difference in factual situation can make a world of difference
in conclusion in the two cases. Reference in this regard can be made to
the judgment of the Apex Court in Union of India and Anr. vs. Major
Bahadur Singh9, in which it is held in paras 9 to 12 as under:
9. The courts should not place reliance on decisions without discussing
as to how the factual situation @ts in with the fact situation of the
decision on which reliance is placed. Observations of the courts are
neither to be read as Euclid's theorems nor as provisions of the statute
and that too taken out of their context. These observations must be read in
7
(2007) 5 SCC 371
8
2023 SCC OnLine 1004
9
2005 SCC OnLine SC 1669
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the context in which they appear to have been stated. Judgments of the
courts are not to be construed as statutes. To interpret words, phrases and
provisions of a statute, it may become necessary for judges to embark into
lengthy discussions but the discussion is meant to explain and not to de.ne.
Judges interpret statutes, they do not interpret judgments. They interpret
words of statutes; their words are not to be interpreted as statutes. In London
Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] Lord
MacDermott observed : (All ER p. 14 C-D)
“The matter cannot, of course, be settled merely by treating
the ipsissima verba of Willes, J., as though they were part of an Act of
Parliament and applying the rules of interpretation appropriate thereto.
This is not to detract from the great weight to be given to the language
actually used by that most distinguished judge….”
10. In Home Of ce v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 :
(1970) 2 WLR 1140 (HL)] Lord Reid said : (All ER p. 297g-h)
“Lord Atkin's speech … is not to be treated as if it were a statutory
de.nition. It will require quali.cation in new circumstances.”
Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 :
(1971) 2 All ER 1267] observed : (All ER p. 1274d-e) “One must not, of course,
construe even a reserved judgment of even Russell, L.J. as if it were an Act of
Parliament;” and, in Herrington v. British Railways Board [(1972) 2 WLR 537 :
(1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord Morris said : (All ER p. 761c)
“There is always peril in treating the words of a speech or a judgment as
though they were words in a legislative enactment, and it is to be
remembered that judicial utterances are made in the setting of the facts
of a particular case.”
11. Circumstantial Dexibility, one additional or different fact may make a
world of difference between conclusions in two cases. Disposal of cases
by blindly placing reliance on a decision is not proper.
12. The following words of Hidayatullah, J. in the matter of applying
precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC
680] , AIR p. 688, para 19)
“19. … Each case depends on its own facts and a close similarity
between one case and another is not enough because even a single
signi.cant detail may alter the entire aspect, in deciding such cases,
one should avoid the temptation to decide cases (as said by Cardozo) by
matching the colour of one case against the colour of another. To
decide, therefore, on which side of the line a case falls, the broad
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resemblance to another case is not at all decisive.”
***
“Precedent should be followed only so far as it marks the path of
justice, but you must cut the dead wood and trim off the side branches,
else you will .nd yourself lost in thickets and branches. My plea is to
keep the path to justice clear of obstructions which could impede it.”
(emphasis added)
22) It therefore needs to be seen as to whether the facts and
circumstances of the present case are similar to the ones involved in
Faime Makers Pvt. Ltd. and B.K. Corporation for applying the ratio
therein to the present case. Before proceeding further, it must be
observed that the Competent Authority had granted liberty to
Respondent No. 2-society to .le a fresh application for deemed
conveyance and in that sense, it is dif.cult to accept the proposition that
the Competent Authority has reviewed its own order. The contention
that the occasion for exercising the granted liberty is yet to occur is an
argument different than the contention that the Competent Authority
has reviewed the earlier order. The contention of absence of power of
review can be raised only where the Competent Authority plainly rejects
the application for deemed conveyance (without granting any liberty)
but still entertains a successive application and grants the same. In a
case involving rejection of earlier application with grant of liberty to .le
a fresh one after a speci.ed eventuality, the issue of consideration would
always be whether the occasion for exercise of the liberty has occurred or
not. Mr. Kapadia has however contended that in Faime Makers Pvt. Ltd.
and B.K. Corporation also, liberties were granted for .ling of fresh
applications for deemed conveyance and that the fresh applications were
entertained and granted even before the eventuality for exercise of
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liberty was yet to occur. The argument, I must observe, proceeds on an
admission that the judgments in Faime Makers Pvt. Ltd. and B.K.
Corporation are rendered in the facts of those cases where the occasion
for exercise of the granted liberty was yet to occur. It would therefore be
necessary to consider the factual situation in both the cases.
23) In Faime Makers Pvt. Ltd., the landowner had executed an
Indenture of Lease in favour of respondent No.3 therein who had
granted development rights over the leased land in favour of the
developer. The developer constructed unauthorised building on the
leased land without approved plans. The landowner thereafter executed
deed of conveyance in favour of the appellant before the Apex Court who
claimed ownership rights in the larger land including the leased land on
which the building got constructed. The lessee (respondent No.3) .led a
suit against the appellant and against the original landowner. The suit
was compromised and it was agreed to divide the larger property into
two portions. The lessee executed deed of surrender of leasehold rights
in one portion whereas Respondent No. 3 recognised the leasehold rights
of the lessee in respect of the balance portion. This arrangement
changed the identity of land on which the building was constructed and
it was unclear whether that land fell into ownership of Respondent No. 3
or in leasehold rights of the lessee. This resulted into dif.culty in
identifying whether the lessee retained any rights in respect of the land
on which the building was constructed. The 0at purchasers formed a
society and applied for certi.cate of unilateral deemed conveyance
under Section 11 of MOFA. The application was rejected by the
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competent authority inter alia on the ground of dif.culty in identifying
the land in respect of which leasehold rights could be granted in favour
of the society. The Competent Authority directed the parties to .rst
seek appropriate relief from the competent civil court and granted
liberty to the society to .le a fresh application for deemed conveyance.
Instead of approaching the civil court to resolve the legal complications,
a fresh application was .led by the society before the Competent
Authority, which was allowed, granting assignment of leasehold rights in
the land in favour of the society. This Court upheld the order of the
Competent Authority. It is in the light of these peculiar facts that the
Apex Court held that the society could approach the Competent
Authority afresh only after getting the complications sorted out before
the appropriate court. This is a reason why the second order passed by
the Competent Authority granting deemed conveyance was set aside by
holding that the High Court had erred in giving a different interpretation
to the .rst order of rejection.
24) In the light of the above peculiar factual position, the Apex
Court has held in paras 19, 21, and 23 to 27 of the judgment in Faime
Makers Pvt. Ltd as under:
19. Having considered these submissions and having perused the order dated
22-2-2021, we have no hesitation to hold that there was no unconditional
liberty granted to Respondent 2 Society to apply for the unilateral assignment
of leasehold rights. The order dated 22-2-2021 is very clear that complications
had arisen because of various transactions inter se parties at different points of
time. The relevant facts have already been noted in the earlier part of this
judgment.
xxx
21. A plain reading of the above .ndings of the competent authority in its
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order dated 22-2-2021 leaves no manner of doubt that Respondent 2 Society
could approach the competent authority afresh for the unilateral assignment
of leasehold rights only after getting the complications sorted out before the
appropriate court. The order clearly indicates that the competent authority
could not grant leasehold rights under the existing set of facts until and unless
the complications were sorted out.
xxx
23. It has been settled by this Court that the principle of res judicata applies to
and binds quasi-judicial authorities. This Court in Ujjam Bai v. State of
U.P. [1962 SCC OnLine SC 8] has taken the view that principles of res judicata
equally apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial
tribunal gives a .nding on law or fact, its .ndings cannot be impeached
collaterally or in a second round and are binding until reversed in appeal or
revision or by way of writ proceedings.
24. The characteristic attribute of a judicial act or decision is that it binds,
whether right or wrong. Thus, any error, either of fact or law, committed by
such bodies cannot be controverted otherwise by way of an appeal or revision
or a writ unless the erroneous determination relates to the jurisdictional
matter of that body.
25. This position has been further reinforced in Abdul Kuddus v. Union of
India [(2019) 6 SCC 604] which relies upon Ujjam Bai [Ujjam Bai v. State of U.P.,
1962 SCC OnLine SC 8] . In Abdul Kuddus, this Court held that the opinion by
the Foreigners Tribunal is a quasi-judicial order. Therefore, it would be
incorrect to hold that the opinion of the Tribunal and/or the consequential
order passed by the registering authority would not operate as res judicata.
Further, it was established that any quasi-judicial authority would not
ordinarily have the power to unilaterally take a contrary view taken by a
coordinate or predecessor authority at an early point in time.
26. From the foregoing discussion, it is evident that once a competent
authority (quasi-judicial in nature) settles an issue, that determination attains
.nality unless it is set aside in accordance with law.
27. In our opinion, the High Court erred in giving a different interpretation to
the above text of the .rst order dated 22-2-2021. The High Court had extracted
the above .ndings, conclusions, and directions in its impugned order [Faime
Makers (P) Ltd. v. Registrar, Coop. Societies (3), 2023 SCC OnLine Bom 2495]
but still moves on to hold that unconditional liberty was given to Respondent 2
Society, which in our opinion, was not correct.
25) In B.K. Corporation, a civil suit was .led by Noble House
CHSL in the City Civil Court seeking conveyance of land by impleading
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the promoter, original landowners and other societies in the layout.
During pendency of the suit, Apeksha CHSL .led .rst application for
deemed conveyance, which was rejected by the Competent Authority
holding that the same was premature. Liberty was granted to Apeksha
CHSL to .le a fresh application after decision of the civil suit. Without
challenging the .rst rejection order and during pendency of the civil
suit, Apeksha CHSL .led second application for deemed conveyance,
which was allowed by the Competent Authority. This Court followed the
ratio of the judgment in Faime Makers Pvt. Ltd. and held that the
second application for deemed conveyance was not maintainable in view
of liberty granted to .le fresh application only after decision of the civil
suit.
26) Thus, in Faime Makers Pvt. Ltd., complications had arisen
because of various transactions inter se between the parties at different
points of time. Therefore, liberty was granted to .le fresh application for
deemed conveyance after getting the complications relating to
identi.cation of property to be conveyed sorted out from the civil court.
In that case, consent terms resulted in exchange of land between the
owner and the lessee, and it had become dif.cult to know whether lessee
had retained any right in respect of the land on which the building was
constructed. Therefore, liberty to .le fresh application for deemed
conveyance was granted only after getting the said complications sorted
out from the civil court. Similarly, in B.K. Corporation, liberty to .le
fresh application was granted only after decision of pending civil suit.
Thus, in both the cases, it was necessary that an adjudication from civil
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court was required and therefore the Competent Authority had rejected
the .rst applications for deemed conveyance, granting liberty to the
society to apply afresh after decisions of the civil court.
27) In the present case, no adjudication by a civil court is
necessary for the purpose of deciding the prayer for deemed conveyance
made by the second Respondent-society. There are no disputes about
sharing of land between Ariisto Cloud CHSL (Respondent No.2) and Kum
Kum Apartments CHSL (Respondent No.6). There are no disputes with
the landowners, who are more than happy to convey the subject land in
favour of second Respondent-society. Mr. Kapadia has in fact alleged
that the landowners are hand in gloves with the second Respondent-
society. The only dispute is with regard to Petitioner’s alleged right to
utilise future additional FSI by paying consideration. The landowners do
not desire to utilise any future additional FSI and are possibly aware of
the settled law that possibility of future additional FSI can never be a
ground for delaying conveyance of land for eternity. Reference in this
regard can be made to the judgment of Division Bench of this Court in
Lakeview Developers vs. Eternia Co-operative Housing Society
Limited10, 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
10
2015 SCC Online Bom 3824
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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 its 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 10th 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
its 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.
28) The principle is applied by this Court in Kiran Builders Pvt.
Ltd. vs. Kalpita Enclave Co-operative Housing Society Ltd. and Ors. 11
29) On account of the above settled position of law, the
landowners are no longer interested in monetising the future additional
FSI in respect of the subject land, though the Development Agreement
makes them entitled to receive consideration @ Rs. 51,000/- per sq.m.
for additional FSI. On the other hand, Petitioner-developer wants to
milk the additional FSI 0owing out of introduction of DCPR, 2034. This
is clear from the following pleadings in the Petition:
3.10. Be that as it may, in terms of Development Control and Promotion
Regulations, 2034, since additional FSI / TDR was available for the Petitioner
to use, the Petitioner had categorically intimated to the Respondents their
11
Writ Petition No.9694 of 2017 decided on 18 June 2026
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intention to utilise such additional FSI. As per the Petitioner’s computation,
this additional FSI that has now become available to be utilized is a substantial
amount of 841.16 sq.mts.
xxx
3.12. In furtherance of its rights under the Development Agreement, read with
the irrevocable POA and Supplementary Deed, the Petitioner .led an
Application dated 23rd October 2024 with the Brihanmumbai Municipal
Corporation (“BMC”), which was resubmitted by the Petitioner on 16 th June
2025, 24th June 2025 and 9th July 2025 inter alia for utilization of the additional
FSI / TDR of 841.16 sq. meters on the Subject Property. In order to not burden
the record of this Hon’ble High Court, the Petitioner is not annexing the said
applications to this Petition but craves leave to refer and rely upon the same as
and when required.
30) Petitioner relies on clause 12 of the Development
Agreement dated 3 March 2010 in support of its contention of right to
utilise future additional FSI/TDR which reads thus:
12. The Developers shall be entitled to consume and utilize the Development
Potential on the said Property. It is agreed that all the future additional FSI
including TDR or any other FSI available shall exclusively belong to the
Owners. It is further agreed that any future FSI/TDR that may become
available after consuming and utilizing the total FSI / TDR to the extent of the
Development Potential, shall belong exclusively to the Owners PROVIDED
HOWEVER THAT the Developer shall at its own option be entitled to utilize
such additional FSI/TDR available by paying an additional consideration
computed at the rate of Rs.51,000/- (Rupees Fifty one thousand only) per
square meter of such additional FSI/TDR to the Owners, to be divided equally.
It is clari.ed that all other cost including cost of TDR to be borne by the
Developers only.
31) It is highly debatable as to whether clause 12 of the
Development Agreement can create any right in favour of the Petitioner
to utilise future additional FSI arising out of the subject land under
Section 11(1) of MOFA read with the Agreements for Sale required to be
executed in Form-V of the MOFA Rules. It is a statutory obligation on
the part of the Petitioner to perfect its title in respect of the land and to
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convey its right, title and interest in the land and the building in favour
of organisation of 0at purchasers within a period of 4 months of
formation of such organisation. Thus, everything belonging to the
landowner and the promoter must be transferred to the organisation of
0at purchasers. It is impermissible to retain any right in the land by the
owner after a housing scheme is implemented on the land, the building
is constructed by consuming the sanctioned FSI and the 0ats constructed
therein are sold. With sale of each 0at, the title of the landowner and the
promoter gets diluted in the land and once all the 0ats in the building
are sold, the title of the owner and the promoter in the land is divested
and only a formal act of conveyance needs to be executed under Section
11(1) of MOFA by the promoter and on its failure, by the Competent
Authority under Section 11(3).
32) The Respondent No.2-society is formed and registered on
28 June 2016 and Petitioner was under statutory obligation to convey the
land and building to the society within 4 months of 28 June 2016. The
importance of this period of 4 months has been repeatedly highlighted
by this Court. Reliance by Ms. Srinivasan on judgment of this Court in
Flagship Infrastructure Ltd. (supra) in this regard is apposite, in which it
has held in paras-34 and 35 as under:
34. The use of the word “period” in Rule 9 of MOFA Rules is very important. In
common understanding, a "period" means a .xed, de.nite block of time, like
four months, six months, etc. It does not mean some vague or uncertain future
event. This meaning .ts the general rule in law: unless the context requires
otherwise, words in a law must be given their natural, everyday meaning. Here,
the word “period” is clear and plainit points to a de.nite timeline. The
promoter’s argument that the conveyance can be delayed until ten years after
completion of Towers 1 to 8, or till the entire township is done would destroy
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this certainty. It would replace a clear deadline with an uncertain, shifting
future event. That is not allowed. Courts are not allowed to change or rewrite
clear laws under the excuse of interpretation. If courts start allowing such
changes, it would defeat the whole purpose for which MOFA was made to
protect 0at buyers. If the promoter’s argument is accepted, it would allow
promoters to hold on to ownership forever, just by pointing to some
incomplete work in the township. This would bring back the very problems
MOFA wanted to prevent. Thus, the word "period" in Rule 9 must be
understood as a de.nite, .xed time and not an open-ended condition. Any
clause in a sale agreement (like Clauses 6.3.1 and 6.3.2) that tries to override
this rule is void (meaning invalid) because it goes against the law.
35. Based on the above discussion, I am .rmly of the opinion that an
agreement clause (like Clauses 6.3.1 and 6.3.2) that says the promoter can
delay conveyance until the full project is complete goes against Rule 9 of
MOFA. Especially when most of the 0at purchasers have already taken
possession, have formed a registered society, and have ful.lled their
obligations, the promoter cannot hide behind private clauses to delay
conveyance. If I accept the promoter’s argument, it would make the protection
given to 0at purchasers under MOFA meaningless, and would give complete,
unregulated power to the promoter. That is not what the law allows. Therefore,
the promoter was under a legal duty to execute the conveyance deed within
four months from the date the society was registered (i.e., within four months
from 12th September 2011). The promoter failed to do so. Thus, the
application .led by respondent No.2-society under Section 11 of MOFA was
legally correct.
33) Thus, a promoter cannot inde.nitely delay conveyance of
land on the pretext of exploiting the further additional FSI arising out of
the new FSI regime. In the present case, Petitioner is attempting to claim
a right which never belonged to him in law. He was statutorily required
to convey the land and building in favour of the society. He ought to
have conveyed the land and the building within 4 months of formation
of the society. The additional FSI arising out of DCPR-2034 introduced
on 8 May 2018 belongs to the society. It neither belongs to the land
owners nor Petitioner can exploit the same by paying amount to the
landowners. Therefore, enforceability of Clause 12 of the Development
Agreement itself is highly debatable. Be that as it may, it is not necessary
PAGE NO. 22 of 32
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to delve deeper into this aspect considering the limited controversy
involved in the present Petition.
34) Coming back to the core issue of nature of liberty granted by
the Competent Authority in the .rst rejection order dated 10 March
2025, the relevant part of the order reads thus:
15. On perusal of the above submissions and documents submitted by the
concerned parties, it is observed that:
…
k. As per MOFA agreement the Developer will get additional FSI over and
above 3,137.28 sq. mtrs. of by paying premium to Owner @Rs.51,000 per sq.
mtrs. as per clause 12 of Registered Development Agreement dt. 03.03.201
between Owner & Developer and the Developer is entitled to utilise &
consume the unutilized FSI admeasuring 81.03 sq.mt. which is balance as
per the Registered Development Agreement dt. 03.03.2010 at no additional
premium to Owner. Also the work of Applicant Building speci.cally on
ground 0oor/.rst 0oor is pending. It is only fair to grant the conveyance to
the building after completion of the construction of the entire building of
applicant society.
(emphasis and underlining added)
35) Thus, the Competent Authority essentially recorded three
distinct reasons for rejecting the application dated 10 March 2025. The
rst reason was about developer’s right to secure additional FSI over and
above 3137.28 sq.m. by paying premium to the owner @Rs.51,000/- per
sq.m. This right is recognised by the Competent Authority, both under
‘MOFA agreement’ as well as under Clause 12 of the registered
Development Agreement dated 3 March 2010. The second reason was
unutilised FSI admeasuring 81.03 sq.m. as per the approved plan dated
16 March 2012 forming part of FSI already granted as per the
Development Agreement at no additional cost to the owner. The third
reason was pendency of work of the building, especially on the ground
0oor and .rst 0oor.
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36) By citing the above three reasons, the Competent Authority
rejected society’s application for deemed conveyance by holding the
same as premature. The Competent Authority held that ‘It is only fair to
grant the conveyance to the building after completion of the construction of
the entire building of applicant society’.
37) Thus, though the Competent Authority cited three reasons
for rejection of Application, it ultimately held that conveyance could be
granted “after completion of the construction of the entire building of
applicant society”. This would essentially indicate that the .nding of
Application being premature is essentially married to the third ground of
construction of the building being incomplete. If the observation of the
Competent Authority is strictly and literally interpreted, it did not
speci.cally direct that conveyance could be granted after additional
construction was put by (i) utilising future additional FSI by paying
Rs.51,000/- per sq.m. to the owners or (ii) existing balance FSI of 81.03
sq. mts. It held that the conveyance could be granted “after completion of
the construction of the entire building of applicant society”. This is one way
of reading the Order dated 10 March 2025 and this is how Ms. Srinivasan
reads that order. On the other hand, Mr. Kapadia reads the order dated
10 March 2025 to mean that liberty to .le fresh application for deemed
conveyance can be exercised only after all the three eventualities
discussed above are complete viz. (i) utilization of the future additional
FSI of 841.16 sq.m. available under DCPR, 2034 in terms of clause 12 of
the Development Agreement, (ii) utilization of balance FSI of 81.03 sq.m.
PAGE NO. 24 of 32
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and (iii) completion of work on the ground and the .rst 0oor of the
building.
38) Construction of the entire building of Respondent No.2-
society is admittedly complete and Petitioner’s architect had submitted
building completion certi.cate to the Municipal Corporation on 14
October 2012. It is fairly not argued before me by Mr. Kapadia that
construction of the building is incomplete in any manner. He has only
harped on Petitioner’s entitlement to put up additional construction by
utilising FSI arising out of DCPR, 2034. He has also not seriously
disputed the FSI computations put forth by the society indicating that
only 3.25 sq.m. of FSI is balance as per the sanctioned plan. Otherwise
also, perusal of the Area Statement in the sanctioned plan would
indicate that the entire sanctioned FSI has been consumed (except built-
up area of 3.25 sq.m.). The society therefore contends that since
construction of the building is complete, it was entitled to exercise the
liberty granted by the Competent Authority. As observed above, the
observations made in para-15-k of the order dated 10 March 2025 do
suggest that Respondent No.2 had liberty to apply afresh for deemed
conveyance after completion of construction of the entire building. In
my view therefore, considering the peculiar facts and circumstances of
the present case, exercise of liberty by Respondent No.2 to .le second
application for deemed conveyance after being satis.ed that
construction of the building is complete cannot seriously be faulted.
39) It must be also noted that if contention of the Petitioner
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about liberty being linked to completion of additional construction by
utilising FSI arising out of DCPR-2034 is accepted, the time for exercise
of such liberty may never arise in the light of the fact that Petitioner is
actually not entitled to put up additional construction by milking future
additional FSI arising out of change of FSI regime in view of law
repeatedly enunciated by this Court. Therefore, in the peculiar facts and
circumstances of the present case where the liberty to .le application
was not linked to decision of any civil suit as was the case in Faime
Makers and B.K. Corporation, exercise of liberty by Respondent No.2 in
.ling fresh application for deemed conveyance cannot really be found
fault with.
40) In my view therefore the case does not involve exercise of
power of review by the Competent Authority. While passing order dated
10 March 2025, the Competent Authority has not rejected Society’s
application altogether. The Competent Authority had granted liberty to
the Society to .le a fresh application. The second application of deemed
conveyance was .led by the society in terms of that liberty.
41) One must bear in mind the objective of the Petitioner in
opposing the conveyance of land to the housing society. Petitioner has
already exploited the development potential in the land and has milked
the pro.ts out of the project. Its greed to make more pro.ts is however
not satis.ed and it wants to put up additional construction in the land
because the new DCPR grants additional FSI. Except the Petitioner-
developer no other person/party is opposing the conveyance. The other
society in the layout (Kum Kum Society) has not challenged the order.
PAGE NO. 26 of 32
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The land owners are supporting the conveyance grated in favour of the
society. in such circumstances, if the order of deemed conveyance is set
aside on technicalities cited by the Petitioner, the same would result in
indirectly permitting the Petitioner to put up additional construction in
the project, by exploiting the additional FSI which belongs to
Respondent No. 2-society. Can extraordinary jurisdiction of this Court
be permitted to be used for such purposes? The answer, to mind, appears
to be in emphatic negative. Courts have refused to set aside orders on
technicalities when ultimate outcome of the litigation is found to be
satisfactory. Reliance by Ms. Srinivasan on judgment of the Apex Court
in Gadde Venkateswara Rao (supra) is apposite in this regard. The Apex
Court has held in para-19 of the judgment as under:
19. The result of the discussion may be stated thus : The Primary Health
Centre was not permanently located at Dharmajigudem. The representatives of
the said village did not comply with the necessary conditions for such location.
The Panchayat Samithi .nally cancelled its earlier resolutions which they were
entitled to do and passed a resolution for locating the Primary Health Centre
permanently at Lingapalem. Both the orders of the Government, namely, the
order dated March 7, 1962, and that dated April 18, 1963, were not legally
passed : the former, because it was made without giving notice to the
Panchayat Samithi, and the latter, because the Government had no power
under Section 72 of the Act to review an order made under Section 62 of the
Act and also because it did not give notice to the representatives of
Dharmajigudem village. In those circumstances, was it a case for the High
Court to interfere in its discretion and quash the order of the Government
dated April 18, 1963? If the High Court had quashed the said order, it would
have restored an illegal order — it would have given the Health Centre to a
village contrary to the valid resolutions passed by the Panchayat Samithi. The
High Court, therefore, in our view, rightly refused to exercise its extraordinary
discretionary power in the circumstances of the case.
42) In Maharaja Chintamani Saran Nath Shahdeo (supra), the
Apex Court has followed the ratio of the judgment in Gadde
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Venkateswara Rao and in Mohd. Swalleh vs. IIIrd ADJ12 and has held
that the order of the authority, who had no power to issue direction for
giving notice for refund of excess amount, need not be set aside once it
was found that the appellant therein was legally paid excess
compensation under the Act. The Apex Court held in paras-12 to 15 of
the judgment as under:
12. Therefore, the question is whether the order of the Member of Board of
Revenue should be quashed on this ground. If the order is set aside, the result
would be that the notice directing the appellant to refund the additional
amount of compensation assessed at ten times of the net income would have
to be quashed. In other words, the earlier reassessment of compensation made
by giving ten times of the net income would revive. If under the law the
appellant is not entitled to get compensation more than three times of the net
income it would amount to restoring an illegal order.
13. In Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] this Court
considered the action of the State Government under the Andhra Pradesh
Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion
that the Government had no power under Section 72 of the Act to review an
order made under Section 62 of the Act but refused to interfere with the orders
of the High Court on the ground that if the High Court had quashed the said
order, it would have restored an illegal order and, therefore, the High Court
rightly refused to exercise its extraordinary jurisdictional power.
14. In Mohd. Swalleh v. IIIrd ADJ [(1988) 1 SCC 40] similar view was also
expressed by this Court. In that case the order passed by the prescribed
authority under the U.P. (Temporary) Control of Rent and Eviction Act, 1947
was set aside by the District Judge in appeal though the appeal did not lie. The
High Court came to the .nding that the order of the prescribed authority was
invalid and improper but the District Judge had no power to sit in appeal. The
High Court did not interfere with the orders of the District Judge. The order of
the High Court was af.rmed by this Court on the ground that though
technically the appellant had a point regarding the jurisdiction of the District
Judge but the order of the prescribed authority itself being bad, no exception
can be taken against the refusal of the High Court to exercise powers under
Article 226.
15. Therefore, in view of the above ratio laid down by this Court, we hold
that even if the Member of Board of Revenue had no power to issue
direction for giving notice for refund of the excess amount paid, no
12
(1988) 1 SCC 40
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exception can be taken to the said order if it is found that legally the
appellant was paid excess compensation under the Act.
(emphasis added)
43) Petitioner has invoked jurisdiction of this Court under
Article 227 of Constitution of India, which is both supervisory and
corrective in nature. The jurisdiction need not be exercised to correct
every error of law or fact when the .nal .nding is found to be justi.ed or
can be supported. In this regard, reference can be made to the judgment
of Apex Court in Garment Craft v. Prakash Chand Goel13 in which it has
held in para 15 as under:
15. Having heard the counsel for the parties, we are clearly of the view that the
impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del
11943] is contrary to law and cannot be sustained for several reasons, but
primarily for deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The High Court exercising
supervisory jurisdiction does not act as a court of .rst appeal to reappreciate,
reweigh the evidence or facts upon which the determination under challenge is
based. Supervisory jurisdiction is not to correct every error of fact or even a
legal 0aw when the .nal .nding is justi.ed or can be supported. The High
Court is not to substitute its own decision on facts and conclusion, for that of
the inferior court or tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar
Kholkar, (2010) 1 SCC 217] The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty or 0agrant abuse,
violation of fundamental principles of law or justice. The power under Article
227 is exercised sparingly in appropriate cases, like when there is no evidence
at all to justify, or the .nding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised to ensure there is no
miscarriage of justice.
44) Similarly, Chief Justice M.C. Chagla of this Court speaking
for the Division Bench in State of Bombay vs. Morarji Cooverji 14 has
held in para 42 and 44 as under:
13
(2022) 4 SCC 181
14
1958 SCC OnLine Bom 188
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42. … This is, on the contrary, a case where the premises requisitioned for a
public purpose are occupied by a Government servant and are sought to be
taken possession of by the landlord by asking the Court to throw the
Government servant out and restore possession to the landlord when that
landlord has never shown its need of those premises by occupying them
himself. Therefore, this is clearly a case where justice is not on the side of
the petitioner, it is on the side of the State, and we see no reason why we
should grant any relief to the petitioner.
***
44. With respect to the learned Judge, the matter is much more serious than
merely the question of this particular vacancy of 1956 not being relevant to the
vacancy which is the subject-matter of the requisition order. On a writ
petition, as we have already said, the petitioner has not merely to show
good faith, but he has not to suppress any facts and has also to show that
justice lies on its side. If the learned Judge had taken these circumstances
into consideration and then had come to the conclusion that the discretion
should be exercised in favour of the landlord, then undoubtedly we would not
have interfered with the order passed by the learned Judge.
(emphasis added)
45) Thus, while invoking extraordinary jurisdiction of this Court
under Article 227 of Constitution of India, it is necessary for the
petitioner to demonstrate that the justice is on its side. In a case where
this Court notices that justice is not on the side of the petitioner, it
would not interfere in the order merely on technical reasons. The High
Court always can decline grant of relief where petitioner seeks to invoke
extraordinary jurisdiction to secure undue bene.t. The law in this regard
is expounded by three judge Bench of the Apex Court in MP Mittal vs.
State of Haryana15 in which it has held in para 5 as under:
5. Now there is no dispute that the appellant knowingly and deliberately
entered into the guarantee agreement and is liable as guarantor to make
payment of the dividend due from Messrs Depro Foods Limited. Nor is it
disputed that the amount due, with interest, stands at Rs 2,02,166—in
respect of the period ending with the year 1977. It was not contended
that the appellant in fact does not possess suf.cient funds or cannot
15
(1984) 4 SCC 371
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avail of suf.cient personal property for the purpose of discharging the
liability. The record also shows that before instituting coercive
proceedings, the Assistant Collector provided the appellant an
opportunity to pay up the amount due from him and that the appellant
made no attempt to discharge the liability. When that is so, we are of
opinion that he is not entitled to relief in these proceedings. The
appeal arises out of a writ petition and it is well-settled that when
a petitioner invokes the jurisdiction of the High Court under
Article 226 of the Constitution, it is open to the High Court to
consider whether, in the exercise of its undoubted discretionary
jurisdiction, it should decline relief to such petitioner if the grant
of relief would defeat the interests of justice. The court always has
power to refuse relief where the petitioner seeks to invoke its writ
jurisdiction in order to secure a dishonest advantage or perpetuate
an unjust gain. This is a case where the High Court was fully justi.ed in
refusing relief. On that ground alone, the appeal must fail.
(emphasis added)
46) The objective of the Petitioner behind opposing conveyance
must also be appreciated. In the present case, .ling of present Petition is
aimed by Petitioner-developer at milking future additional FSI arising
out of change of FSI regime (DCPR 2034). Petitioner has constructed the
society’s building by consuming the entire available FSI granted at the
time of sanction of plans. Merely because DCPR 2034 are introduced in
2018, Petitioner believes that it can put additional construction
admeasuring 841.16 sq.m. on the land and with that objective, Petitioner
is denying conveyance of land to the society. This way, no developer
would ever convey land to the organisation of 0at purchasers and would
continue to take bene.t of further additional FSI made available due to
change in FSI regime. Fortunately, in the present case, the landowners to
whom the FSI belongs as per clause 12 of the Development Agreement,
fairly do not want to utilise the same. It is only the promoter who is
attempting to earn a fortune by taking bene.t of its own wrong, who is
PAGE NO. 31 of 32
17 JULY 2026
Neeta Sawant WP 12863 of 2025
interested in putting up additional construction on subject land. This
Court would not be a party to such devious acts of the Petitioner of
monetising something which belongs to society. If additional FSI 0ows
out of DCPR 2034, the same would belong to Respondent No.2-Society
and not to the Petitioner. Therefore, this Court would refuse to permit
its extraordinary jurisdiction being misused by the Petitioner for
achieving its insatiable objective of endlessly milking the development
potential in the land for eternity. Section 11 of MOFA is aimed at curbing
this tendency on the part of the developers.
47) In the light of the above discussion, this Court is not
inclined to exercise its extraordinary jurisdiction to grant any relief in
favour of the Petitioner.
48) Writ Petition is accordingly dismissed with no order as to
costs.
[SANDEEP V. MARNE, J.]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2026.07.17
18:16:32
+0530
PAGE NO. 32 of 32
17 JULY 2026
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