Bombay High Court
BIJAL HEIGHTS CO OPERATIVE HOUSING SOCIETY LTD.versusTHE STATE OF MAHARASHTRA THR. G. P. AND ORS
- Decided
- Disposal
- Disposed Off
Holding
The Court set aside the 15 December 2015 deemed conveyance order, the 16 September 2016 deed of conveyance and the mutation entry, and remanded the matter for fresh determination of proportionate land division.
Summary
The Bombay High Court entertained a writ petition by Bijal Heights Co‑operative Housing Society Ltd., challenging a 2015 order of the District Deputy Registrar and Competent Authority that granted unilateral deemed conveyance of 1,357.43 sq m of land to Mulund Bijal Co‑operative Housing Society Ltd. The petitioner argued it was not impleaded, was unaware of the proceedings, and that the order resulted in an unjust reduction of its land entitlement despite having a No‑Objection Certificate for only the area actually built. The Court examined whether the delay of ten years barred the petition and held that laches could not defeat the petitioner's substantive rights. It found the order, the subsequent registered deed of conveyance (16 Sept 2016) and mutation entry to be faulty and set them aside. The matter was remanded to the Competent Authority to redo the proportionate land division in accordance with the relevant government resolution, with both societies required to submit architects' certificates. The petition was partly allowed and the proceedings were disposed of without costs.
Issues considered
- Whether the Competent Authority's order granting unilateral deemed conveyance can be set aside despite the petitioner's delay.
- Whether a co‑operative society not impleaded as a respondent has locus standi to challenge a deemed conveyance order.
- Whether the registered deed of conveyance and mutation entry effected on the basis of the deemed conveyance are void.
- Whether proportionate land division must be undertaken as per the Government Resolution dated 22 June 2018.
- Whether the petitioner is entitled to apply for deemed conveyance of its proportionate share of land.
Legislation cited
Subjects
- deemed conveyance
- co‑operative housing society
- proportionate land division
- mutation entry
- registered deed of conveyance
- laches
- competent authority
- floor space index
- building regulations
Judgment
2026:BHC-AS:35130
Renuka 40-WP-14065-2025.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 14065 OF 2025
Bijal Heights Co Operative Housing ...Petitioner
Society Ltd.
V/s.
The State Of Maharashtra Through G. ...Respondents
P. and Ors
________________
Mr. S. G. Deshmukh with Ms. Priya A. Patil i/b Mr. Gautam
Kanchanpurkar for Petitioner.
Ms. Arundhati A. Walavalkar, for Respondent No. 3.
Ms. S. D. Chipade, AGP for Respondent-State.
________________
CORAM: SANDEEP V. MARNE, J.
DATED: 24 AUGUST 2026.
P.C.:
1) Leave is granted to amend the Petition by incorporating
challenge to Registered Deed of Conveyance dated 16 September 2016 as
well as mutation entry effected in pursuance thereof. Amendment to be
carried out forthwith.
2) By this Petition, Petitioner-society has challenged order
dated 15 December 2015 passed by the District Deputy Registrar (2)
Eastern Suburbs, Mumbai and Competent Authority (Competent
Authority) granting unilateral deemed conveyance of land admeasuring
1357.43 Sq. Mtrs in favour of the Respondent No. 2-society.
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3) It appears that two buildings are constructed on a common
layout by the developer, in respect of which two separate societies are
formed. Mulund Bijal Co-operative Housing Society Ltd (Mulund Bijal
CHSL) was apparently formed at an earlier point of time and Petitioner-
Bijal Heights Co-operative Housing Society Ltd. (Bijal Heights CHSL) is
formed in respect of building subsequently constructed. However, while
seeking deemed conveyance of land and building Mulund Bijal CHSL
failed to implead Bijal Heights CHSL as a party Respondent to
Application No. DC1000 926/2015 filed before the Competent Authority.
It appears that the Developer had invited attention of the Competent
Authority to the fact that there are two buildings in the layout had
highlighted and the necessity to hear objections by Bijal Heights CHSL.
However, it appears that the Competent Authority ignored the said
objections and proceeded to issue certificate of unilateral deemed
conveyance dated 15 December 2015 in favour of Mulund Bijal CHSL
conveying land admeasuring 1357.43 Sq. Mtrs.
4) The Petition is filed after a period of 10 long years. However,
since the Petitioner-Bijal Heights CHSL was not made party Respondent
to the Application preferred by Mulund Bijal CHSL, there was no reason
for the Petitioner-society to acquire any knowledge in respect filing or
decision of the Application of Mulund Bijal CHSL. Apparently, the
Petitioner society did not notice even the registered conveyance effected
in favour of Mulund Bijal CHSL as well as revenue entry in pursuance
thereof. In paragraph 15 of the Petition, it is pleaded by the Petitioner-
society that it acquired knowledge about passing of order of deemed
conveyance in favour of Mulund Bijal CHSL, when process of
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redevelopment of its building commenced in the year 2025. Considering
the above position, I am not inclined to dismiss the Petition only on the
ground of delay or laches and I proceed to consider the same on merits.
5) I have heard, Mr. Deshmukh, the learned counsel appearing
for the Petitioner, Ms. Walavalkar, the learned counsel appearing for the
Respondent and Ms. Chipade, the learned AGP for Respondent-State and
have considered the submissions canvassed by them.
6) At the outset, Ms. Walavalkar submits that the Petitioner-
society was fully aware about filing of Application for deemed
conveyance. She invites attention of the Court to letter dated 18 April
2015 issued to the Petitioner-society seeking its No Objection Certificate
(NOC). She also draws attention of this Court to the NOC issued by the
Petitioner-society by letter dated 15 July 2015. The NOC reads thus:-
TO WHOM SO EVER IT MAY CONCERN
We here by stalt that our society building and building of Mulund Bijal
Co.op. Hsg. Soc. Are situated on the plot of land bearing CTS situated CTS
No 717.
We say that built up area of Mulund Bijal Co.op. Hsq. Soc. is 1356.93
sq.m. and we have no abjection for conveyance of this area out of our plot
of land bearing CTS No. 717 to them.
7) From the letter of Bijal Heights CHSL dated 18 April 2015, it
appears that plans of filing of Application for deemed conveyance by
Mulund Bijal CHSL were disclosed to the Petitioner-society. By the NOC
Petitioner-society, had not expressed any objection for conveyance of
area of land corresponding the built up area of 1356.93 Sq. Mtrs to
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Mulund Bijal CHSL. However, this does not absolve Mulund Bijal CHSL
of the responsibility of impleading the Petitioner-society as party
Respondent to the application for deemed conveyance, particularly when
it sought conveyance of land in excess of what was permitted under the
NOC.
8) What has happened on account of the impugned order dated
15 December 2015 passed by the Competent Authority is gross reduction
of area entitlement of Petitioner-society and conveyance of excess land
area in favour of Mulund Bijal CHSL. It appears that the total area of land
is 2566.00 Sq. Mtrs. Out of that land, area of 794.27 Sq. Mtrs is affected
by DP road and the net plot area is 1771.73 Sq. Mtrs. By granting FSI
1.00, the Planning Authority had initially sanctioned builtup area of only
1771.73 Sq. Mtrs and building of Mulund Bijal CHSL was constructed by
utilizing BUA 1356.93 Sq. Mtrs. The Balance BUA available for
construction of second building (of Petitioner) was only 414.47 Sq. Mtrs.
However, the planning Authority sanctioned the FSI meant for DP road
acquisition of 794.27 Sq. Mtrs and this is how the total available builtup
area went up from 1771.73 Sq. Mtrs to 2566.40 Sq. Mtrs. Accordingly, the
building of Petitioner-society is constructed by utilizing builtup area of
1209.47 Sq. Mtrs (2566.40 – 1356.93 = 1209.47 Sq. Mtrs). The case does
not involve utilization of any TDR in construction of building of
Petitioner-society. The building of Petitioner-society is constructed by
utilizing FSI flowing through the total plot admeasuring 2566.00 Sq.
Mtrs. Therefore, Petitioner-society is also entitled to share proportionate
land in the layout corresponding to BUA utilized for its construction.
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9) The architect of Mulund Bijal CHSL issued certificate dated
19 June 2015 but did not undertake the exercise of proportionate land
division. The architect completely ignored the position that the building
of Petitioner-society is also constructed in the same layout. The
certificate was clearly faulty. The certificate indicates that since BUA
admeasuring 1356.93 Sq. Mtrs is utilized in construction of building of
Mulund Bijal CHSL, the said society must receive land admeasuring
1357.43 Sq. Mtrs. The Competent Authority has blindly relied upon
certificate of the architect. The Competent Authority has ignored the
position that building of Petitioner-society is also constructed on the
same layout. It has erroneously conveyed land admeasuring 1357.43 Sq.
Mtrs in favour of Mulund Bijal CHSL.
10) Ms. Walavalkar invites the attention of this Court to specific
convenant in Agreement for Sale executed under Section 4 of the
Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (MOFA) in
favour of flat purchasers of the Petitioner-society. Clause No. 5 of those
Agreements stipulated thus:-
The Promoter hereby declares that at present the Floor Space
Index, available in respect of the said property is 1771.40 square
meters only. The Floor Space Index consumed in the said existing
building known as Bijal is 1356.93 square meters: The Floor Space
Index being consumed for the said building/wing known as Bijal
Heights is 414.47 square meters along with the road benefit of 795
square meters. No part of the floor space Index of the said property
has been utilized by the Promoter elsewhere for any purpose
whatsoever.
11) In fact the stipulation in paragraph 5 of the Agreement for
sale makes a case for Petitioner-society even better. The said stipulation
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made it clear that the building of the Petitioner-society was to be
constructed by utilizing balance BUA of 414.47 Sq.Mtrs alongwith road
benefit of 795 Sq. Mtrs.
12) Considering the above position, in my view, the impugned
order passed by the Competent Authority is clearly faulty and is liable to
be set aside.
13) It appears that in pursuance of the impugned order passed
by the Competent Authority, the conveyance deed dated 16 September
2016 has been registered and mutation entry No. 1053 is effected to
bring on record name of Mulund Bijal CHSL. Since the order of the
Competent Authority dated 15 December 2015 is being set aside,
consequentially, the registered deed of conveyance dated 16 September
2016 and mutation entry No. 1053 also deserve to be set aside. The
proceedings deserve to be remanded for the purpose of carrying out the
exercise of proportionate land division between the two society.
14) The Petition succeeds in part and I proceed to pass the
following order:-
(i) Order dated 15 December 2015 passed by the
Competent Authority is set aside. Consequently, the
registered deed of conveyance dated 16 September 2016
and Mutation Entry No. 1053 are also set aside.
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(ii) Application No. DC1000926 of 2015 is remanded on
the file of the Competent Authority for being decided
afresh.
(iii) Both the Petitioner as well as Respondent No. 3-
society shall produce certificates of their respective
architects indicating land division proportionate to
builtup area utilized for construction of each building
before the Competent Authority.
(iv) Competent Authority shall proceed to undertake the
exercise of proportionate land division by keeping in mind
provisions of GR dated 22 June 2018.
(v) Petitioner and Respondent No. 3-society shall appear
before the Competent Authority on 2 September 2026
alongwith copy of this order downloaded from website of
this Court and shall apply for fixation of date(s) of hearing
in the remanded proceedings.
(vi) The Petitioner-society shall also be at liberty to apply
for deemed conveyance of proportionate land in its favour.
If, such Application is filed both the Applications shall be
decided by the Competent Authority together.
15) All contentions of parties on merits are expressly kept open.
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16) With the above directions. Writ Petition is partly allowed
and disposed of. There shall be no order as to costs.
[SANDEEP V. MARNE, J.]
Signed by: Renuka S Thakur
Page No.8 of 8
Designation: PA To Honourable Judge 24 August 2026
Date: 27/08/2026 15:01:38
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