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Bombay High Court

ROSE VILLA CO-OPERATIVE HOUSING SOCIETY LTD.versusTHE DISTRICT DEPUTY REGISTRAR, CO-OPERATIVE SOCIETIES, MUMBAI CITY (3) AND ORS

Decided
Disposal
Allowed

Holding

The pendency of CIRP does not preclude the Competent Authority from granting deemed conveyance, and the consent letters are blanket consents that do not satisfy the requirements of Section 7 of MOFA; therefore, the order rejecting the application is set aside.

Summary

The petitioner, Rose Villa Co‑operative Housing Society Ltd, sought a certificate of unilateral deemed conveyance of the land and building under Section 11(3) of the Maharashtra Ownership Flats Act (MOFA). The developer, Can Enterprises Pvt Ltd, was under a Corporate Insolvency Resolution Process (CIRP) and claimed the right to add seventh and eighth floors based on consent letters from flat purchasers and additional FSI/TDR. The Competent Authority rejected the application, citing the pending CIRP and the alleged entitlement to further construction. The High Court held that the mere pendency of CIRP does not suspend the statutory duty of the Competent Authority to grant deemed conveyance, and that the consent letters were blanket consents lacking the required disclosure, thus not valid under Section 7 of MOFA. Consequently, the order rejecting the application was set aside and the matter remanded for the Competent Authority to issue the deemed conveyance certificate in favour of the society. The writ petition was allowed.

Issues considered

  • Whether the pendency of a CIRP against the promoter bars the Competent Authority from exercising its power under Section 11(3) of MOFA to grant deemed conveyance.
  • Whether the consent letters obtained from flat purchasers constitute valid consent under Section 7 of MOFA for additional vertical construction.
  • Whether the developer is entitled to construct the seventh and eighth floors based on additional FSI/TDR and the consent letters.
  • Whether the Competent Authority erred in rejecting the application for deemed conveyance on the above grounds.

Legislation cited

Subjects

  • deemed conveyance
  • MOFA
  • CIRP
  • insolvency
  • flat purchasers
  • consent letters
  • blanket consent
  • additional FSI
  • TDR
  • co‑operative housing society
  • Section 11
  • Section 14 IBC
  • development rights

Judgment

2026:BHC-AS:40590
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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO.17527 OF 2024

             Rose Villa Co-operative Housing Society Limited .... Petitioner
                      V/S
             1. The District Deputy Registrar
                Co-operative Societies Mumbai City (3)

             2. Can Enterprises Private Limited &

             3. Naresh Shah                                               ....Respondents
                                                _________

             Mr. Shreepad Murthy with Mr. Abhishek Patil for the Petitioner.
             Mr. Amrut Joshi with Ms. Rucha Jog and Ms. Hemali Dhande for
             Respondent No.2.
             Ms. Savina R. Crasto, AGP for Respondent No.1./State.
                                           __________

                                        CORAM : SANDEEP V. MARNE, J.
                                        RESERVED ON: 22 SEPTEMBER 2026
                                        PRONOUNCED ON: 06 OCTOBER 2026

             J U D G M E N T:

             1.       By this Petition, the Petitioner-society has challenged order dated
             29 July 2024 passed by the District Deputy Registrar, Co-operative
             Societies, Mumbai City (3) and Competent Authority (Competent
             Authority) rejecting Application No.8 of 2024 filed seeking certificate of
             unilateral deemed conveyance in respect of the land and the building.
             Deemed Conveyance is denied to the Petitioner-society inter alia on the
             grounds that Respondent No.2-developer is undergoing Corporate
             Insolvency Resolution Process (CIRP) and that Respondent No.2 is

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entitled to carry out additional construction of 7 th and 8th floors on the
building.


2.       Briefly stated, facts of the case are that plot of land bearing CTS
No.725/A, Survey No.68, Hissa No.1, Survey No.128 (part) and 69A (Part)
of Village Ambivali, Taluka Andheri, Mumbai Suburban District was
purchased by Respondent No.2 on 8 December 2009. There was existing
structure on the plot by name Rose Villa comprising of ground plus six
upper floors. Respondent No.2 decided to demolish the old building and
to construct a new building in place thereof. Accordingly, Respondent
No.2 submitted plans for construction of new building on 9 December
2013. Intimation of Disapproval (IOD) was received in respect of the
plans for construction of the building of four floors. Later,
commencement certificate dated 31 May 2014 was issued by Municipal
Corporation of Greater Mumbai. On 30 January 2015, plans were further
revised and sanctioned for construction of building upto sixth floor.
Accordingly, revised commencement certificate dated 23 February 2015
was issued for building comprising six floors. Respondent No.2
completed construction of the entire building and secured full
occupation certificate on 7 September 2016.


3.       After procuring occupation certificate in respect of the completed
building, Respondent No.2 started selling flats in the building. During
2016-17, Respondent No.2 sold majority of the flats in the building. One
flat was sold on 5 June 2018 and one more flat was sold on 20 February
2020. According to Respondent No.2, under flat purchase Agreements

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executed under Section 4 of the Maharashtra Ownership Flats
(Regulation of the Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (MOFA), Respondent No.2 reserved a right to use
additional FSI/TDS for vertical addition to the building. The Agreement
also recognized right of Respondent No.2 to obtain/receive setback
compensation. Respondent No.2 claims to have secured individual No
Objection Certificates (NOCs) from each flat purchasers for vertically
extending the building by referring to Notification dated 16 November
2016 for use of Transferable Development Rights (TDR). In the year
2020, Respondent No.2 secured approval for construction of floor Nos.7
and 8 by paying premium towards consumable FSI etc.


4.       CIRP was initiated against Respondent No.2 and by order dated 27
January 2020 passed by the National Company Law Tribunal (NCLT) in
Company Petition (IB) No.3753/(MB)/2018, a moratorium was imposed
and Board of Directors of Respondent No.2 was suspended. By order
dated 9 June 2020, a Resolution Professional came to be appointed in
respect of Respondent No.2. On 8 July 2020, Commencement Certificate
was issued by the Municipal Corporation for construction upto 8 th floor.
On 10 November 2022, Petitioner-society was registered. Challenge
raised by Respondent No.2 to registration order was repelled by this
Court by order dated 27 February 2024. On 30 April 2022,
commencement certificate was issued for proposed two additional floors
on existing completed building.


5.       In the above background, Petitioner-society filed Application
dated 2 January 2024 before the Competent Authority seeking deemed
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conveyance of land and building under Section 11(3) of the MOFA. The
Resolution Professional appeared on behalf of the Promoter and
opposed the Application relying on NOCs issued by individual flat
purchasers. The commencement certificate towards vertical extension
was revalidated on 24 April 2024. By order dated 29 July 2024, the
Competent Authority has dismissed the Application preferred by the
Petitioner-society for deemed conveyance. Aggrieved by the order dated
29 July 2024 passed by the Competent Authority, Petitioner-society has
filed the present Petition.


6.       Mr. Murthy, the learned counsel appearing for Petitioner-society
submits that the Competent Authority has erroneously rejected the
Application for deemed conveyance filed by the Petitioner-society on
account of pendency of CIRP against Respondent No.2. He relies on
judgment of this Court in Darshan Mandir Co-operative Housing
Society Limited vs. District Deputy Registrar, Co-operative Societies,
Mumbai (4)1 holding that mere initiation of CIRP against a promoter
does not suspend or extinguish right of the society to secure conveyance
of the land and the building.


7.       Mr. Murthy further submits that Respondent No.2 is not entitled
to carry out any further construction on the existing building as he has
fully exhausted the entire development potential sanctioned by the
Planning Authority. That NOCs relied upon by Respondent No.2 are
nothing but mere blanket consents, which have no existence in the eyes

1
     Writ Petition No.16318 of 2025, decided on 22 June 2026.
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of law. He relies on judgment of this Court in Dosti Corporation vs. Sea
Flama Co-operative Housing Society Limited and Others. 2 He submits
that NOCs state that the flat purchasers had seen the approved plans,
which means the plans which were sanctioned as on the date of
execution of the NOCs and at that time no plan was sanctioned for
vertical extension of the building. That most of the letters are secured
from flat purchasers on the same day of execution of Agreement for Sale.
That there is absolutely no disclosure of details about additional
construction, utilization of FSI, balance FSI potential etc. in the alleged
NOCs. That plan subsequently sanctioned in the year 2020 is of little
relevance as there is no consent by flat purchasers to the said plan. Mr.
Murthy relies on judgment of this Court in Ariisto Realtors Pvt. Ltd. vs.
District Deputy Registrar3 in support of his contention that the balance
FSI belongs to the society. He submits that Competent Authority cannot
go into the issue of consent and in support, he relies on judgment of this
Court in Santoshkumar Motilal Bhansali vs. Competent Authority 4. Mr.
Murthy submits that construction of the entire six floor building is
complete. That there is overhead tank constructed on the building and
that there is no scope for putting up two additional floors. Mr. Murthy
accordingly prays for setting aside the impugned order and for issuance
of direction to the Competent Authority to convey the entire land and
the building in favour of the Petitioner society.


8.       The Petition is opposed by Mr. Joshi, the learned counsel
appearing for Respondent No.2. He submits that the Competent
2
     Appeal from Order No.117 of 2016, decided on 7 April 2016
3
     2026 SCC OnLine Bom 6344
4
     Writ Petition No.5974 of 2025, decided on 28 January 2026
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Authority has rightly dismissed the application of the society, which was
clearly premature. Additionally, deemed conveyance cannot be granted
in favour of the society in view of the pendency of the CIRP against
Respondent No.2. He distinguishes the judgment of this Court in
Darshan Mandir CHSL (supra) contending that the said case involved
imposition of moratorium on an assignee. That in the present case, the
concept of divesting of title of the Promoter has not taken place since
construction of the building is still incomplete. That the society is
formed after imposition of moratorium and that therefore there is prior
legal incapacity in the facts of the present case. In support, he relies on
judgment of the Apex Court in Vishnoo Mittal vs. Shakti Trading
Company5. That therefore, the application for deemed conveyance
cannot be decided in the present case in view of provisions of Section 14
of the Insolvency and Bankruptcy Code, 2016 (IBC).


9.       On merits, Mr. Joshi submits that the Petitioner had suppressed
NOCs/consent letters executed by flat purchasers. That the developer
had started selling the flats after securing the occupancy certificate and
had given a clear idea of his intention to put up additional construction
by use of TDR. That the case does not involve deliberate delay in
construction of building and availing of benefit of additional
development potential. That while selling flats itself, the flat purchasers
were made aware of the position that additional vertical extension to the
building would be effected. That the flat purchasers cannot first execute
consent letters and then seek to backtrack from them by branding the

5
     (2025) 9 SCC 417
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same as blanket consent. He submits that the revised plan was submitted
before securing consent letters and that the same was disclosed to the
flat purchasers. That thus, flat purchasers purchased the flats with full
idea that two more floors would be added to the building. He submits
that the flat purchasers subsequently sought to withdraw their consent,
meaning thereby that the consents were validly given by them. That
Respondent No.2 is entitled to carry on further construction on the
building in accordance with the revised sanction permission. That
Respondent No.2 is willing to convey the land after completion of
construction of 7th and 8th floor. That additional construction partly
inures to the benefit of the society as Respondent No.2 would construct
common amenities for the society on the 8 th floor in the form of fitness
center and society office.


10.      Mr. Joshi relies on judgment of this Court in Nahalchand
Laloochand Pvt. Ltd. and Ors. vs. Shree Panchamurti CHSL 6 in support
of his contention that power of Competent Authority under Section 11 of
MOFA is not unfettered and that the same is circumscribed by
verification of authenticity of agreements and consents under Section 7
of MOFA. He relies on judgment of this Court in Satellite Garden I Co-
operative Housing Society Limited vs. State of Maharashtra 7 in support
of his contention that where flat purchasers have consented to revised
plan, conveyance needs to be made in accordance with the revised plan.
He accordingly prays for dismissal of the Petition.



6
    2025 SCC OnLine Bom 341
7
    Writ Petition No. 1128 of 2026, decided on 16th September 2026
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11.      Rival contentions urged on behalf of the parties now fall for my
consideration.


12.      Petitioner-Society’s Application             for deemed     conveyance       is
rejected by the Competent Authority essentially on twin grounds of
pendency of CIRP against Respondent No. 2 and alleged entitlement of
Respondent No.2 to put up additional construction in the building in
accordance with revised development permission.


13.      I first take up for consideration the issue as to whether mere
pendency of CIRP against Respondent No.2 can be a reason for not
deciding the application for deemed conveyance by the Competent
Authority under Section 11(3) of MOFA. The issue is no more res integra
and is covered by judgment of this Court in Darshan Mandir CHSL
(supra). After considering the ratio of judgments in Anudan Properties
Private Limited vs. Mumbai Metropolitan Region, Slum Rehabilitation
Authority8 and Santoshkumar Motilal Bhansali (supra), this Court held
in paragraphs 25 to 29 of the judgment as under:


         25) Though the judgment in Anudan Properties Private Limited is rendered in
         the context of interplay between the provisions of IBC and Slum Act, the
         subsequent judgment in Santoshkumar Motilal Bhansali takes into account
         the interplay between the provisions of Section 14 of IBC and Section 11 of
         MOFA. The judgment in Santoshkumar Motilal Bhansali provides a complete
         answer to the issue at hand. In that case, this Court has borrowed the analogy
         of distinction between freezing of monetary claims under resolution plan and
         statutory obligations which continue despite insolvency in the context of
         adjudication of application for deemed conveyance. This Court has held that
         the Competent Authority performs a statutory function and confers a
         statutory benefit upon flat purchasers which function is not in the nature of a
         recovery action. It is not a claim enforcement mechanism. It is an exercise of
         statutory power to perfect title in favour of an organization of purchasers.

8
    2025 SCC OnLine Bom 692
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         Therefore, it is held that statutory rights of third parties and statutory duties
         of authorities continue despite insolvency or moratorium.

         26) The ratio of the judgment in Santoshkumar Motilal Bhansali binds me. I
         would like to further build upon the ratio of that judgment by observing that
         an action initiated by a financial creditor against a corporate debtor under
         Section 7 of IBC and a moratorium imposed under Section 14 while admitting
         the application of that financial creditor cannot negate or even suspend the
         statutory duty of the Competent Authority under Section 11(3) and (4) of
         MOFA. One must bear in mind the objective behind amending the provisions
         of Section 11 by 2008 amendment by incorporating a provision for deemed
         conveyance. The concept of deemed conveyance is introduced after noticing a
         large-scale failure on the part of the developers in transferring title in the land
         and after noticing a trend followed by almost all developers in deliberately
         delaying conveyance of land with a view to endlessly milk the additional
         development rights created in the land with passage of time. The developers in
         cities like Mumbai, Pune etc. were deliberately not conveying land in favour of
         societies so as to exploit further development potential created in the land due
         to sanction of additional FSI/TDR etc. The Legislature took note of the ground
         reality that the provisions of Section 11, as it stood prior to amendment, were
         not sufficient and it was taking unduly long time for decision of suits for
         conveyance as there was large scale failure on the part of the developers to
         perform statutory duty imposed under Section 11. It is with a view to provide a
         swift mechanism for the societies to secure title in respect of the land and the
         building that special provision for granting unilateral deemed conveyance was
         introduced in the form of sub-sections (2) to (5) in Section 11 of MOFA. This
         statutory objective cannot be permitted to be defeated merely on account of
         provisions of Section 14 of IBC.

         27) What is sought to be done in the present case is an attempt on the part of
         Respondent No.4 to circumvent the provisions of Section 11 of MOFA by
         taking aid of CIRP initiated by an altogether unconnected entity (Canara
         Bank). In many cases, the developers are corporate entities who undertake
         numerous projects over the period of time. If such developer-company fails to
         convey land in contravention of Section 11(1) of MOFA in respect of a building
         which is constructed a quarter of century ago but attracts CIRP from an
         unconnected financial creditor, the same would not suspend the statutory
         obligation under Section 11(1) imposed on such developer. Otherwise, errant
         developers would misuse the moratorium imposed on them under Section 14
         of IBC to indefinitely delay conveyance under Section 11(1) of MOFA. The
         Courts must be alive to the ground reality that several buildings in cities like
         Mumbai, Pune etc are in the need of redevelopment. The normal life of a
         building in Mumbai Metropolitan Region is statutorily recognised as 30 years,
         after which it is incumbent for the owner of the building to a secure structural
         audit report certifying its stability. This is on account of peculiar weather

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         conditions in MMR areas. Thus, several buildings in MMR areas are in need of
         redevelopment since the buildings have crossed their lifespans. The Society
         whose building becomes dangerous or dilapidated, but does not have a title in
         the land or building for undertaking redevelopment, uses the route under
         Section 11(3) of MOFA to secure conveyance in a swifter manner. However, if
         provisions of Section 14 of IBC are interpreted to mean that proceedings for
         deemed conveyance cannot be adjudicated by Competent Authority till
         resolution plan is approved by NCLT, the same would put Society's building, as
         well as lives of occupants therein, in danger. In a case where Society's building
         is in eminent need of redevelopment, but Society is unable to undertake
         redevelopment because of absence of conveyance and where deemed
         conveyance is denied on account of initiation of CIRP against the developer,
         the same would put the lives of occupants of the building in danger.

         28) What must also be borne in mind is the fact that in most of the cases, there
         is virtual loss of right of the promoter in the land and building due to
         combined effect of provisions of Section 4 and Section 11 of MOFA. With sale
         of each flat in the building, there is dilution of title of the developer in the
         land. The moment all the flats in the building are sold, the developer is
         virtually divested of title in the land. While things may look slightly
         complicated in respect of multistory towers, one may take into consideration a
         simple illustration of a developer undertaking construction of four flats on a
         plot of land. When all four flats in the building are constructed and sold, the
         four flat purchasers acquire 25% right each in the land and the developer
         looses its title in the land. In a similar manner, when all flats in a multistorey
         tower are sold and a cooperative society/company of flat purchasers is formed,
         the promoter’s title in the land gets divested and such society/company
         becomes entitled to own the land on which the building is constructed. The
         things may also get slightly complicated in a layout development. However,
         even qua layout development, similar analogy would apply and the developer
         loses proportionate title in the land to the extent of completed buildings in
         the layout. It cannot be that the developer exploits development potential in
         the land, constructs flats and sells them to the purchasers, but still retains
         ownership in the land. This concept is unknown to law. On the other hand,
         provisions of Sections 4 and 11 of MOFA ensure that the developer is divested
         of his right, title and interest in the land and the building which is statutorily
         required to be transferred/conveyed to the organisation of flat purchasers.
         Thus what is conveyed by the Competent Authority need not necessarily be the
         ‘asset’ of the promoter on account of operation of concept of divesting.

         29) Ordinarily only an owner of the immovable property can execute
         conveyance thereof. However, a unique concept of ‘deemed conveyance’ is
         introduced in MOFA for reasons discussed above. The concept of deemed
         conveyance envisages transfer of title of land owner without his consent and
         in absence of his signature on the instrument of conveyance. The transaction
         of deemed conveyance is effected through registration of a certificate issued by
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         the Component Authority. This concept of deemed conveyance envisaging
         transfer of title of a landowner against his desire is thus based on the principle
         of divesting of title. Once the development potential as per the sanctioned
         plan is exploited, buildings are constructed, flats are sold and an organization
         of flat purchasers is formed, the developer loses title in the land and the
         building. The law enjoins a duty on him to transfer the title in the land and the
         building in favour of the organization of flat purchasers [Section 11(1) of
         MOFA]. However, if the developer fails in performance of statutory duty by not
         transferring the title, the Competent Authority steps into developer’s shoes
         and issues a certificate of unilateral deemed conveyance. The law thus
         presumes loss of title of the developer once failure occurs on his part to
         perform the duty under Section 11(1) of MOFA. This presumption is however
         rebuttable. Even after the certificate of unilateral deemed conveyance is issued
         and registered, the developer can still institute a suit and demonstrate that the
         title in the land or in portion thereof still vests in him. Thus, the statutory
         scheme of Section 11 of MOFA is such that there is presumption of loss of title
         in the land and the building and it is on this presumption that a certificate of
         unilateral deemed conveyance is issued by the Component Authority. Till the
         developer secures a declaration from a Court to the contrary through a decree,
         the instrument of deemed conveyance based on such presumption continues
         to remain valid for all purposes. Considering this peculiar statutory scheme of
         Section 11 of MOFA, it is difficult to hold that the deliberate act of the
         developer in not transferring the title in the land in violation of statutory duty
         under Section 11(1) results into holding of any ‘asset’ by him within the
         meaning of Section 14 of IBC, which cannot be transferred on account of
         imposition of a moratorium. What is effected by the Competent Authority is,
         not transfer of property of the corporate debtor in real sense, but mere
         certification that the title in the land and building has now vested in the
         organization of flat purchasers by reason of failure to perform statutory duty
         by the developer. In my view therefore, provisions of Section 14 of IBC do not
         come in the way of Competent Authority execrcising powers under Section 11
         of MOFA.


14.      Thus, this Court has taken a view in Darshan Mandir CHSL
(supra) that the promoter gets divested of his title in respect of the land
and the building upon sale of all flats in the building, and therefore the
land or the building no longer remains his asset within the meaning of
Section 14 of the IBC. This Court has, therefore, held that mere initiation
of CIRP against a promoter cannot come in the way of Competent
Authority exercising jurisdiction under Section 11 of MOFA to grant
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deemed conveyance of the land and building in favor of organization of
flat purchasers.


15.      A useful reference can be made to the view expressed by the Apex
Court holding that the rights created under the Development Agreement
in favour of a promoter cannot be considered to be the asset of the
corporate debtor for the purpose of Section 14 of the IBC. In AA Estates
P. Ltd vs. Kher Nagar Sukhsadan Co-operative Housing Society
Limited9, the issue before the Hon'ble Apex Court was whether a
Development Agreement executed in favour of a promoter constitutes
the asset or property of the corporate debtor so as to attract the
protection of moratorium under Section 14 of the IBC. Answering the
issue in the negative, the Apex Court held that for the purposes of
Section 14 of IBC, only such property or assets which form part of the
corporate debtor’s estate as on the insolvency commencement date are
protected. Mere expectant, contingent or uncrystallized contractual
rights do not constitute ‘assets’ within the meaning of the Code. The
Apex Court has held in paragraphs 16.1, 16.2, 16.4, 16.11 and 16.12 of
the judgment in A.A. Estates as under:


         16.1. It is not in dispute that the corporate debtor is entitled to the protection
         of Section 14 of the IBC, which mandates that on the insolvency
         commencement date, the Adjudicating Authority shall by order declare a
         moratorium prohibiting, inter alia –

                (a) the institution or continuation of suits or proceedings against the
                corporate debtor including execution of any judgment, decree or order
                in any court of law, tribunal, arbitration panel or other authority;
                (b) the transfer encumbrance, alienation or disposal by the corporate
                debtor of any of its assets or any legal right or beneficial interest

9
    2025 SCC OnLine SC 2579
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                therein;
                (c) any action to foreclose, recover or enforce any security interest
                created by the corporate debtor in respect of its property; and
                (d) the recovery of any property by an owner or lessor where such
                property is occupied by or in the possession of the corporate debtor.

         16.2. The object of Section 14 is to maintain the corporate debtor’s estate as a
         going concern and to preserve its assets so as to facilitate resolution. The term
         “property” under Section 3(27) of the IBC is defined in the widest terms to
         include money, goods, actionable claims, land and every description of
         movable or immovable, tangible or intangible property, and extends to deeds
         and instruments evidencing title or interest therein. However, for the purposes
         of Section 14, only such property or assets which form part of the corporate
         debtor’s estate as on the insolvency commencement date are protected. Mere
         expectant, contingent or uncrystallized contractual rights do not constitute
         “assets” within the meaning of the Code.

         xxx

         16.4. The above exposition clarifies that whether a development agreement
         constitutes an “asset” of the corporate debtor depends on whether it creates a
         proprietary, possessory or enforceable right in its favour at the relevant time.
         Not every executory or conditional contract amounts to an asset. The
         protection of Section 14 is confined to existing, subsisting and enforceable
         rights as on the date of commencement of the CIRP.

         16.11. It is well settled that the moratorium under Section 14 does not revive
         terminated contracts or protect rights that have ceased to exist prior to
         insolvency. The protection is intended to preserve the existing value of the
         corporate debtor’s estate, not to resurrect lapsed or extinguished interests.
         Extending moratorium to such non-existent rights would defeat commercial
         certainty and the sanctity of lawful termination under general law.

         16.12. Accordingly, we hold that the Development Agreement dated 16.10.2005
         and the Supplementary Agreements dated 23.12.2005 and 09.04.2014 do not
         constitute “assets” or “property” of the corporate debtor within the meaning of
         Section 14 of the IBC, as the same stood terminated prior to initiation of the
         second CIRP. No proprietary, possessory, or enforceable right subsisted in
         favour of the corporate debtor on the insolvency commencement date. The
         moratorium declared under Section 14 would therefore not restrain
         Respondent No. 1 Society or its members from proceeding with redevelopment
         in accordance with law.

16.      Since this Court has taken into consideration the ratio of the Apex
Court’s judgment in AA Estates (supra), it would also be necessary to

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refer to judgment of Coordinate Bench of this Court in RNA Exotica Flat
Purchasers Association vs. Skyline Construction Company and Others 10,
on which reliance was placed on behalf of Respondent No.2 during the
course of previous hearing of the Petition. In RNA Exotica (supra), a
Single Judge of this Court had apparently taken a view that the relief of
specific performance, compensation and damages against the developer
would constitute a ‘debt’ under the IBC and that therefore, when the
developer was undergoing CIRP proceedings, the claim of the Plaintiff
could not be continued to be adjudicated in the forum other than before
NCLT. This Court held in paragraph 36 of the judgment as under:

         36. The perusal of the plaint along with the relief sought therein would reveal
         that the suit is filed by the plaintiff association, for a declaration that the
         agreements for sale, and or the agreement evidenced by the allotment letter,
         allotting flats to its members in the project ‘RNA Exotica’ constructed by the
         defendant no. 1 to be valid, legal, concluded and binding and hence calling
         upon the defendant no. 1 to perform the said agreement and to hand over the
         respective flats on completion of the project in time bound manner, in
         addition, the plaint also seek an order and decree for compensation and
         damages, owing to the Plaintiff, due to the non handing over possession of the
         flats and not performing their obligations, under the agreement evidenced by
         the confirmation letter and for future losses and damages, quantified, at Rs.
         1,00,000/- per member per month to each member of the Plaintiffs
         association.
             In the event of the relief of specific performance not being granted, it is
         prayed that Defendant No. 1, shall repay to the Plaintiff paid amounts with
         escalation calculated at the current market value of the suit flat along-with
         compensation and damages as may be computed as per the ready reckoner.
             In the wake of the aforesaid, it is evident that upon the relief being granted
         to the aforesaid effect, it would amount to a ‘debt’ and if the defendant no. 1 is
         undergoing the CIRP proceedings, then the claim of the plaintiff shall not be
         continued to be adjudicated in a forum other than the NCLT, which at the end
         of the process, would draw a resolution plan as, contemplated under Section
         30, which shall be approved under Section 31 and bind the corporate debtor
         and its employees, members, creditors to whom a debt in respect of payment
         of dues arising under any law for the time being in force and since the Plaintiff


10
     2024 SCC OnLine Bom 945
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         Society would be one such creditor, it must ultimately fall in line with the
         resolution plan.
             For the aforesaid reasons, the term debt cannot be given a constricted
         meaning particularly in the wake of the laudable object underlying the IBC.
         For this reason, when an application is filed against defendant no. 1 for
         initiation of Insolvency Resolution Process, with an interim moratorium being
         imposed, the interim application filed by the plaintiff do not deserve
         consideration and must await the outcome of the proceedings before the
         National Company Law Tribunal (NCLT), Mumbai.



17.      However, in subsequent judgment of the Hon’ble Apex Court in

AA Estates (supra), the Apex Court has emphatically ruled that a
development agreement executed in favour of a promoter does not
constitute asset of promoter/corporate debtor and that therefore, writ
petition filed by the society seeking direction against Planning and
Statutory Authorities to process and consider the redevelopment
proposal of new developer was perfectly maintainable. The Apex Court
has summarized the principles in paragraph 21 of the judgment in A.A.
Estates P. Limited (supra) as under:

         21. Upon a comprehensive consideration, the conclusions of this Court on the
         issues framed are as follows:

         (i) The termination of the Development Agreement dated 16.10.2005 and
         Supplementary Agreements dated 23.12.2005 and 09.04.2014 by Respondent
         No. 1 Society was valid, lawful, and effective in law, having been carried out
         after due notice and in consequence of prolonged and inexcusable default by
         the developer. The Society, as the owner of the land, was entitled to revoke the
         contract and appoint a new developer to protect the interest of its members.

         (ii) The aforesaid Development Agreement and the Supplementary
         Agreements do not constitute “assets” or “property” of the corporate debtor
         within the meaning of Section 14 of the IBC. The said agreements stood
         validly terminated prior to the initiation of the second CIRP, and hence, no
         subsisting or enforceable right survived in favour of the corporate debtor.

         (iii) The High Court was justified in entertaining the writ petition filed by
         Respondent No. 1 Society and directing the statutory authorities to process
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         and grant approvals in favour of Respondent No. 8, subject to compliance with
         law. Such directions were procedural in nature, did not encroach upon the
         jurisdiction of the NCLT, and did not contravene the moratorium under
         Section 14 of the IBC.

         (iv) The proceedings before the High Court were conducted in substantial
         compliance with the principles of natural justice. The appellants were afforded
         a fair opportunity of hearing, and no real prejudice or failure of justice has
         been demonstrated.


18.      The spirit of ratio of the judgment of the Apex Court in A.A.
Estates (supra) would apply in connection with deemed conveyance
applications as well. Mere initiation of CIRP cannot be blindly
considered as a factor for suspension of every proceeding against the
corporate debtor. It first needs to be ascertained as to whether the
property involved in the proceedings is indeed the asset of the corporate
debtor. In the context of obligation of the promoter to convey the land
under Section 11(1) of MOFA, this Court has held in Darshan Mandir
CHSL (supra) that the land is no longer the asset of the promoter and
that therefore mere pendency of CIRP against a promoter does not come
in the way of Competent Authority exercising jurisdiction under Section
11(3) of MOFA for granting deemed conveyance of the land and the
building in favour of the organization of flat purchasers.


19.      Mr. Joshi has sought to distinguish both the judgments in A.A.
Estates as well as in Darshan Mandir CHSL. According to him, the ratio
of the judgment in A.A. Estates does not apply in the facts of the present
case as the said judgment deals with the issue as to whether
development rights granted by a society in favour of a developer while
executing redevelopment process constitutes an asset of the developer

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or not. He submits that the present case does not involve grant of any
development rights and that Respondent No.2 is the owner of land who
has right to complete construction of the building. In my view, however,
ratio of judgment in A.A. Estates would be squarely applicable to the
facts of the present case. The judgment is an authority on the issue as to
whether mere pendency of CIRP against a developer would suspend the
proceedings initiated against him. The Apex Court has ruled that High
Court was justified in entertaining the writ petition, directing the
statutory authorities to process and grant approvals in favour of a new
developer notwithstanding termination of the Development Agreement
of appellant before the Apex Court and in favour of Respondent No. 8-
new developer. The spirit of the ratio of judgment of the Apex Court is
clearly attracted in the present case since Competent Authority has
refused to exercise jurisdiction under Section 11 MOFA merely on
account of pendency of CIRP against Respondent No. 2.


20.      So far as judgment of this Court in Darshan Mandir CHSL is
concerned, Mr. Joshi has sought to distinguish the same by contending
that the case involved initiation of CIRP against assignee of the original
promoter, which is not the case here. In my view, execution of
assignment in favour of third entity was merely an additional facet
involved in Darshan Mandir CHSL. This Court has essentially decided
the issue as to whether mere pendency of CIRP against the promoter
would suspend obligation under Section 11(1) of MOFA. It is held that
Competent Authority can exercise jurisdiction and decide Application
under Section 11(3) of MOFA notwithstanding initiation or pendency of

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CIRP against the promoter. In my view therefore, judgment of this Court
in Darshan Mandir CHSL would fully apply to the facts of the present
case.


21.      Mr. Joshi relies on judgment of the Apex Court in Vishnoo Mittal
(supra) in support of his contention that CIRP is initiated in the present
case well before registration of the Petitioner-society. CIRP has been
initiated on 27 January 2020 whereas the Petitioner-society is registered
on 10 November 2022. It is therefore sought to be contended that failure
within the meaning of Section 11(1) MOFA had not occurred since
Respondent No.2 was under legal disability to convey the land and
building in favour of the society after its formation. Reliance is placed on
judgment of the Hon’ble Apex Court in Vishnoo Mittal (supra), in which
it is held in paragraph 13 as under:

         13. The bare reading of the above provision shows that the appellant did not
         have the capacity to fulfil the demand raised by the respondent by way of the
         notice issued under clause (c) of the proviso to Section 138 NI Act. When the
         notice was issued to the appellant, he was not in charge of the corporate
         debtor as he was suspended from his position as the Director of the corporate
         debtor as soon as IRP was appointed on 25-7-2018. Therefore, the powers
         vested with the Board of Directors were to be exercised by the IRP in
         accordance with the provisions of IBC. All the bank accounts of the corporate
         debtor were operating under the instructions of the IRP, hence, it was not
         possible for the appellant to repay the amount in light of Section 17 IBC.



22.      The judgment in Vishnoo Mittal (supra) is delivered in the context
of provisions of Section 138 of the Negotiable Instruments Act, 1881 (NI
Act). In the case before the Apex Court, the Appellant, as a director of
the Corporate Debtor, had drawn cheques in favour of the Respondent,
which were dishonored on 07 July 2018. On 25 July 2018, CIRP was

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initiated against the Company, and moratorium under Section 14 of the
IBC was imposed. Notice under Section 138 of NI Act was issued
thereafter on 6 August 2018. In the light of the above factual position,
the issue before the Hon’ble Apex Court was whether the appellant
therein had the capacity to fulfill the demand as per notice issued under
Section 138 of NI Act. The Apex Court answered the issue in the negative
by holding in paragraph 13 as quoted above. The ratio of the judgment in
Vishnoo Mittal has no application to the facts of the present case. In the
light of declaration of law by this Court in Darshan Mandir Co-
operative Housing Society Limited (supra), mere imposition of CIRP on a
promoter does not suspend his statutory obligation under Section 11(1)
of MOFA. Therefore, it cannot be held that the promoter was under prior
legal incapacity, as sought to be suggested by Mr. Joshi.


23.      Thus, the housing society’s non-registration cannot be treated as
a legal disability for conveyance of land during the CIRP. Under Section
10 of MOFA and Rule 8 of the MOFA Rules, the promoter must form a
cooperative housing society once the minimum number of flats has been
sold. Because the society’s non-registration results from the developer’s
own violation of statutory obligation, the developer cannot benefit from
his own wrong and contend that the ‘failure’ envisaged under Section
11(1) of MOFA did not occur to claim the protection of Section 14 of the
IBC.


24.      In view of the above discussion, it is held that the Competent
Authority has erred in not deciding the Application of the society for

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deemed conveyance on the ground of pendency of CIRP against
Respondent No.2.


25.      Coming to the second issue of the alleged right of Respondent
No.2 to put up additional construction in the building, it is seen that
Respondent No.2-promoter has essentially relied on covenants of Flat
Purchase Agreements as well as specific consent letters issued by the flat
purchasers in support of his alleged entitlement to construct 7 th and 8th
floors on the existing building. In the present case, the initial plans for
construction of the building were sanctioned on 9 December 2013 and 30
January 2015. As per the revised permission dated 30 January 2015, the
planning authority sanctioned plans for construction of building upto 6 th
floor. Upon construction of the building upto 6 th floor, the building has
received Occupancy Certificate. Perusal of the OC plan would indicate
that the total built up area (BUA) sanctioned was 1615.88 sq.m. The
entire sanctioned BUA 1615.88 sq.m. is utilized in construction of
building comprising of stilt and six floors.


26.      After securing the Occupancy Certificate, Respondent No.2-
developer sold the flats in the building vide various Agreements for Sale.
Respondent No.2 has relied upon some of the covenants in the
Agreement for Sale, which read thus:


         K) The Promoter has constructed a residential building with the name of
         “ROSE VILLA” hereinafter referred to as “Building” comprising of ground
         plus 6 upper floors on the said Property and the plans for the Building have
         been approved by the Municipal Corporation of Greater Mumbai (hereinafter
         referred to as “MCGM”) and the MCGM has issued an Intimation of
         Disapproval dated 09-12-2013 upto 4 th Floor bearing No. CHE/WS/0258/K/337

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         (NEW) hereinafter referred to as “IOD”. The copy whereof is annexed hereto
         and marked as ANNEXURE “D”. The MCGM also issued amended / revised
         I.O.D. dated 30-01-2015 upto 6th Floor bearing No. CHE/WS/0258/K/337 (NEW)
         hereinafter referred to as “AMENDED IOD”. The copy whereof is annexed
         hereto and marked as ANNEXURE “E”.

         xxx

         13. RIGHT TO USE ADDITIONAL FSI / TDR
         13.1 The Promoter were desirous of redeveloping the said property by
         constructing a new building by utilizing FSI of the said property and TDR FSI
         to the utmost extent and in the said process purchased TDR (Transfer of
         Development Rights) and after having complied with rules and regulations of
         MCGM have got the said TDR loaded on the said property.

         13.2 Purchaser is/are aware that the Promoter are utilizing the FSI of the said
         Property and Fungible FSI as well as FSI by way of Transfer of Development
         Right (TDR) in the proposed building under construction or in the said
         property and also in future with adjacent another property or properties as per
         the law time being in force and the Purchaser do hereby agree to give
         his/her/their full free and irrevocable consent and permission to the Promoter
         for the utilization of such FSI, Fungible FSI and TDR FSI or any other benefits
         arising and or available from the local bodies or authorities on the said
         property and also on the said NEW BUILDING “ ROSE VILLA” itself which was
         constructed on the Said property itself as per the latest D.C. Rules and
         Regulations of MCGM. The Purchaser further agrees not to create any
         obstruction or hindrance in the construction activities, which will be
         undertaken by the Promoter for the construction of the said building including
         utilisation of the said FSI, Fungible FSI, TDR FSI of the said Property and with
         knowledge of the same the Purchaser is/are executing this agreement.

         13.3 The Promoter shall have exclusive rights to utilize any additional FSI that
         may be granted in future as also the TDR rights that the Promoter may receive
         in future in respect of the sai Property and carry out vertical and or horizontal
         addition as to the Building by either adding floor or adding wings to the
         Building. The Purchaser/s hereby explicitly warrants and covenants to the
         Promoter that he/she/them/it shall have no right, claim, interest and/or
         benefit of any nature whatsoever, whether under the existing laws / rules
         and/or such laws / rules that may be amended and/or formed in future.

         13.4 The Purchaser shall not be entitled to any rebate and/or concession in the
         price at his/her/their the said premises on account of the construction of any
         other building and/or structure and/or the changes alterations and additions
         extensions etc. made in the building or buildings or structures or on account of
         any advertisement hoarding put up on the said property and / or the said

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         building and on terrace of the building.

         xxx

         19. SET BACK COMPENSATION
         19.1 The Promoter shall be entitled to claim and receive set back
         compensation for the Property, which may be so notified by the concerned
         authorities prior to the transfer of the said Property described in the first
         Schedule in favour of the said Society/Condominium/Company.

                                                          (emphasis and underlining supplied)


27.      The property taken up for development was referred to in the First
Schedule to the Agreement for Sale, which reads thus:


                                (Description of the said property)

                 ALL that pieces or parcels of land and premises together with
         building/structures standing thereon known as "ROSE VILLA” situated at
         Village Ambivali, Taluka Andheri, bearing Survey No.68, Hissa No.1 (part),
         Survey No.128(part) and Survey No.69A(part) admeasuring about 755 ½
         sq.yds. Corresponding to Old CTS Nos.725, 725/1 & 725/2 and as per City
         Survey records admeasuring 602.50 sq.mtrs and subsequently after sub-
         division corresponding to CTS No. 725/A admeasuring 598.60 sq.mtrs. and CTS
         No.725/B admeasuring 18.10 sq.mtrs. (Reserved for Road Set Back) in the
         Registration District and Sub-District of Mumbai & Mumbai Suburban and
         bounded ..


28.      It appears that Respondent No.2-developer was desirous of
putting up additional construction in the building, construction of which
was already complete upto 6 floors.                       Accordingly, in addition to
contractual covenants, Respondent No.2 secured individual consent
letters from each of the flat purchasers. One such consent letter dated 10
May 2017 executed by the flat purchasers: Chandan Panjwani and Aekta
Panjwani reads thus:



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                                                                              10th May, 2017
         To,
         Can Enterprises Pvt Ltd.
         103/C, Thosar House, Hanuman X Road No. 1,
         Nr. Shiv Leela Hotel, Vile Parle (East),
         Mumbai-400057

         SUB: NOC FOR VERTICAL EXTENSIONS ON PLOT BEARING C.T.S NO 725/A
         (OLD CTS NO.725, 725/1 AND 725/2) SITUATED AT CEASAR ROAD, OF
         VILLAGE AMBIVALI, ANDHERI (W), MUMBAI-400058.

         Dear Sir,

                 We Mr. CHANDAN NARENDER PANJWANI AND Mrs. AEKTA CHANDAN
         PANJWANI staying at flat no. 603, on 6th floor in the building known as Rose
         Villa, Ceaser Road, Near Filmalaya Studio, Andheri (West), Mumbai-400 058.

                This is in reference to the vertical extension of my/our building
         approved / to be approved under BMC file no.CHE/WS/0258/K/337 (New),
         constructed by you.

                We have seen, examined the approved plans for vertical extension of
         my/our building and state that we have no objection of whatsoever nature with
         regard to the construction of the same or as may be amended in future by
         MCGM.

                Subject to what is stated herein, and as per the proposed development
         plan 2034 and or notification No. TPS-1813 / 3067 / CR-122 / MCORP/12/UD-
         13 dated 16.11.2016 and for any future circular, notifications, DCR etc. related
         to additional FSI and Fungible FSI, TDR, you shall always have a right to
         make additions, alterations, raise storeys and/or structures, cantilever
         and surface parking, elevation of the building, as may be permitted by the
         MCGM and other competent authorities and shall be entitled to sell and/or
         dispose of the same in the manner they deem fit. I hereby confirm and
         consents to the irrevocable right of yours to construct the said additional
         floors on the Building to be/being constructed on the said Property in
         the manner deemed fit by you without any further or other consent or
         concurrence in future.

                This consent is an irrevocable consent would be binding upon me/our
         legal heirs, executors, administrator whom so ever claiming right, title and
         interest through me.

                                                            (emphasis and underling supplied)



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29.       Similarly worded consent letters were secured from each of the
flat purchasers by Respondent No.2-developer. The details of dates of
execution of flat purchase agreements and consent letters/NOCs are put
on record by Mr. Joshi through a chart, which reads thus:


Consent-cum-Noc signed before the execution of the MOFA Agreement

    Sr    Flat            Name                 Date of NOC          Date of MOFA       Status
    No.   No.                                                        Agreement
1.        103    Jennifer Drego           08.12.2016               09.12.2016        Flat
                                                                                     Purchaser
2.        202    Rajesh Pancholi          07.02.2017               15.02.2017       Tenant
                                                                   PAA – 21.05.2010
3.        302    Maya Adnani              23.10.2017               18.12.2017        Flat
                                                                                     Purchaser
4.        602    Himanshi Shah, Rupa      20.02.2020               24.02.2020        Flat
                 Shah and Ruhi Shah                                                  Purchaser
5.        603    Chandan Paanjwani        10.05.2017               11.05.2017        Flat
                                                                                     Purchaser


Consent-cum-Noc signed after the execution of the MOFA Agreement

    Sr    Flat            Name                 Date of NOC          Date of MOFA       Status
    No.   No.                                                        Agreement
1.        101    Karmali Sisters          24.06.2017               26.11.2015       Tenant
                                                                   PAA – 21.05.2010
2.        102    Joyce Rodrigues          24.02.2017               26.11.2015       Tenant
                                                                   PAA – 21.05.2010
3.        201    Bhartiben Dubal          24.02.2017               13.12.2016       Tenant
                                                                   PAA – 21.05.2010
4.        401    Deepak Tupe              28.12.2019               26.12.2019        Flat
                                                                                     Purchaser
5.        404    Tanuja Gawde             24.10.2017               10.10.2016        Flat
                                                                                     Purchaser
6.        501    Varsha Dave              24.02.2017               05.10.2016        Flat
                                                                                     Purchaser
7.        502    Vaibhav Gohil            08.06.2017               21.04.2017        Flat
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                                                                                     Purchaser
8.        503    Lynette Mascarenhas      24.02.2017               23.09.2016        Flat
                                                                                     Purchaser
9.        504    Viraj Bhatia             24.02.2017               12.09.2016        Flat
                                                                                     Purchaser
10.       604    Pooja Gawde              24.06.2017               10.10.2016        Flat
                                                                                     Purchaser


Consent-cum-Noc signed with the execution of the MOFA Agreement

    Sr    Flat            Name                 Date of NOC          Date of MOFA       Status
    No.   No.                                                        Agreement
1.        104    Shekhar Pradhan          09.05.2017               09.05.2017        Flat
                                                                                     Purchaser
2.        203    Malti Junnarkar          17.11.2017               17.11.2017        Flat
                 (Pradhan)                                                           Purchaser
3.        204    Milind Deosthali         21.11.2017               21.11.2017        Flat
                                                                                     Purchaser
4.        301    Vijay Kumar Dutt         09.11.2017               09.11.2017        Flat
                                                                                     Purchaser
5.        303    Nila Shah                09.05.2017               09.05.2017        Flat
                                                                                     Purchaser
6.        304    Prashant Phadke          27.04.2017               27.04.2017        Flat
                                                                                     Purchaser
7.        402    Ozwald Sylvester Lewis   05.06.2018               05.06.2018        Flat
                                                                                     Purchaser
8.        403    Neeta Rao                14.12.2017               14.12.2017        Flat
                                                                                     Purchaser


Note: Flat No.601 – Unsold



30.       Thus, in respect of the 8 flat purchasers, NOCs / consent letters
were executed on the ‘same day’ of execution of Agreement for Sale. In
respect of 5 flats, NOCs/consent letters were signed ‘before’ execution of
Agreements for Sale and in respect of 10 flat purchasers, NOCs / consent

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letters were signed ‘after’ execution of Agreements for Sale. Flat No.601
in the building is apparently unsold and still belongs to Respondent
No.2-developer.


31.      Respondent No.2 accordingly relies on contractual covenants as
well as specific NOCs / consent letters executed by individual flat
purchasers in support of his contention that there is a consent given by
the flat purchasers within the meaning of Section 7 of MOFA for
construction of additional floors/flats in the building. Under Section 7 of
the MOFA, there is an embargo on the promoter from making any
alteration in the structure of the flat or in making alterations or
additions in the structure of the building without the previous consent
of purchasers who have agreed to take flats in such building. Section 7 of
MOFA provides thus:


         7. After plans and specifications are disclosed no alterations or additions
         without consent of persons who have agreed to take the flats; and
         defects noticed within three years to be rectified.—

         (1) After the plans and specifications of the building as approved by the local
         authority as aforesaid, are disclosed or furnished to the persons who agrees to
         take one or more flats, the promoter shall not make—
                 (i) any alteration in the structures described therein in respect of the
                 flat or flats which are agreed to be taken, without the previous consent
                 of that persons;
                 (ii) any other alterations or additions in the structure of the building
                 without the previous consent of all the persons who have agreed to
                 take the flats in such building.

         (2) Subject to sub-section (1), the building shall be constructed and completed
         in accordance with the plans and specifications aforesaid; and if any defect in
         the building or material used, or if any unauthorized change in the
         construction is brought to the notice of the promoter within a period of three
         years from the date of handing over possession, it shall wherever possible be
         rectified by the promoter without further charge to the persons who have
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         agreed to take the flats, and in other cases such person shall be entitled to
         receive reasonable compensation for such defect or change. Where there is a
         dispute as regards any defect in the building or material used, or any
         unauthorised change in the construction, or as to whether it is reasonably
         possible for the promoter to rectify any such defect or change, or as regards
         the amount of reasonable compensation payable in respect of any such defect
         or change which cannot be, or is not rectified by the promoter, the matter
         shall, on payment of such fee as may be prescribed, and within a period of
         three years from the date of handing over possession, be referred for decision,
         —
                 (i) in an urban agglomeration as defined in clause (n) of section 2 of the
                 Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), to such
                 competent authority authorised by the State Government under clause
                 (d) of section 2 of that Act, and
                 (ii) in any other area, to such Deputy Chief Engineer, or to such other
                 Officer of the rank equivalent to that of Superintending Engineer in the
                 Maharashtra Service of Engineers, of a Board established under section
                 18 of the Maharashtra Housing and Area Development Act, 1976 (Mah.
                 XXVIII of 1977),
         as the State Government may, by general or special order, specify in this
         behalf. Such competent authority, Deputy Chief Engineer or, as the case may
         be, the other officer of a Board shall, after inquiry, record his decision, which
         shall be final.



32.      According to Respondent No.2, since specific individual consents
are given by all the flat purchasers for making additions to the building,
the embargo under Section 7 does not apply in the present case.


33.      Both the parties are at serious dispute about the nature of consent
letters. According to the Petitioner-society, what is secured is a blanket
consent, whereas according to Respondent No.2-Promoter, consents are
given after perusal of the approved plans. Before I go into the issue of
nature of consents, it must be observed that the Competent Authority is
a tribunal of limited jurisdiction, while exercising the jurisdiction of
granting certificate of unilateral deemed conveyance under Section 11 of
MOFA. In exercise of summary jurisdiction under Section 11, the
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Competent Authority is not expected to conduct intrinsic evidentiary
enquiry into existence or otherwise of validity of consents given by the
flat purchasers. In Satellite Garden I CHSL (supra), this Court while
laying down guidelines for conveyance of proportionate land to
organisation of flat purchasers in a layout development, has dealt with
the issue of consent under Section 7 of MOFA. While laying down the
principle that proportionate land division has to be on the basis of
sanctioned plan at the time of expiry of period of 4 months from
formation of society of the first building in the layout, this Court has
recognised an exception where subsequent plan can also be considered
for proportionate land division, where there is a consent to such
subsequent plan. This Court has held in paras-210 and 211 of the
judgment as under:


         210) It is not that in every case the plans are revised behind the back of already
         constructed buildings. There may be cases where the developer has secured
         written consent from the society of building already constructed as per
         originally sanctioned plan for effecting a revision therein for availing
         additional BUA. In some cases, the existing societies may have monetized their
         right of giving consent by securing consideration in the form of money or
         additional facilities and may have given consent for revision in the plan. In
         such cases, whether the concept of land freezing/crystallisation as on the date
         of formation of the first society can be applied? In my view, the answer is in
         the negative. Where there is express consent by the flat purchasers/societies of
         earlier buildings for revision of plans for construction of subsequent buildings,
         the freezing/crystallisation concept cannot apply. Where such express written
         consent is given, land division can be undertaken on the basis of subsequently
         revised plan, which has such consent. However, in every case where such
         express consent is not given, proportionate land division must necessarily be
         on the basis of the first sanctioned plan or at least the sanctioned plan which
         was in existence at the time of application of concept of freezing.

         211) It is contended that Competent Authority being a tribunal of limited
         jurisdiction cannot go into the issue of existence of consent. There can be no
         dispute about this proposition and since existence or otherwise of the consent,

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         being a matter of intrinsic evidentiary inquiry, the Competent Authority would
         not have jurisdiction to decide that issue. However, in its summary
         jurisdiction, if the developer or society of subsequent building produces a
         consent letter/affidavit, I do not see much difficulty in the Competent
         Authority in acting on the same and assuming that there exists a consent for
         undertaking the exercise of proportionate land division. If a competing society
         has any contrary claim, the same can always be taken for adjudication to the
         Civil Court as the order of deemed conveyance passed by the Competent
         Authority is not final determinative of rights and entitlement of parties qua
         the land conveyed. On the other hand, if no prima facie written evidence of
         consent is produced, the Competent Authority can proceed on the basis of
         absence of consent and apply the principle of freezing/crystallisation of land
         entitlement as per the plan in existence at the time of expiry of the prescribed
         period under Section 11 of MOFA and Rule 9 of MOF Rules for the first society.
         In such a case, the developer/society of latter building can approach the Civil
         Court to establish existence of consent. In my view therefore, though the
         Competent Authority may not be able to resolve the issue of existence or
         otherwise of consent but can make an adjudication on the basis of prima facie
         existence/absence of material to indicate consent. I am supported in my view
         by the judgment of this Court in Nook CHS Ltd. (supra).


34.      In Nahalchand Laloochand (supra), this Court has held that the
Competent Authority can take into consideration the factum of consents
under Section 7 of MOFA. The Court held in paras-12 and 13 of the
judgment as under:


         12. The statutory field of the Maharashtra Ownership Flats (regulation of the
         Promotion, Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”)
         imposes a threefold obligation upon the promoter: (i) to execute and register
         agreements under Section 4; (ii) to facilitate the formation of a legal entity or
         society of flat purchasers under Section 10; and (iii) to execute a conveyance of
         title within the stipulated timeline contemplated under Section 11. The
         regulatory framework is further fortified by Rule 8(1) of the Maharashtra
         Ownership Flats (regulation of the Promotion, Construction, Sale,
         Management and Transfer) Rules, 1964 (“the MOFA Rules”), which requires
         mat a conveyance be executed within four months of the formation of the
         society. Upon failure by the promoter to comply, the competent authority is
         empowered under Section 11(4) of the Act to grant a “deemed conveyance.”
         This legislative intervention was introduced to address the systemic defaults
         of errant promoters, who often failed to fulfill their contractual and statutory
         obligations, leaving flat purchasers perpetually deprived of proprietary rights
         in the land and building.
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         13. However, it cannot be gainsaid that the competent authority's functions
         under Section 11 are not unfettered. They are circumscribed by fundamental
         norms of procedural fairness, which include:
               (i) verification of the authenticity of the agreements and consents
               under Section 7 of MOFA;
               (ii) affording the promoter a reasonable opportunity to contest the
               application under Rule 9(3) of the MOFA Rules; and
               (iii) ensuring that the society's claim aligns with the sanctioned plan
               and the registered agreements.

                                                           (emphasis and underlining added)

It is thus held in Nahalchand Laloochand that the Competent Authority
can conduct inquiry into authenticity of consents under Section 7 of
MOFA.

35.      Thus, even in exercise of its limited jurisdiction, the Competent
Authority can conduct a prima facie enquiry about existence or
otherwise of consents to the additional construction in the building or in
the layout. Mere raising of a plea by a promoter/developer about
existence of consents by the flat purchasers is not enough and the
Competent Authority can direct production of such consents and can
satisfy itself about existence or otherwise of such consents. It therefore
cannot be contended that the issue of existence of consents under
Section 7 of MOFA is altogether outside the jurisdiction of the
Competent Authority.


36.      Mr. Joshi has contended that once consent letters are produced
before the Competent Authority, it must accept the same and cannot
enter into the controversy as to whether the consents are valid or
otherwise.       While there can be no difficulty in accepting what is
suggested by Mr. Joshi, the issue for consideration is whether the

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Competent Authority would blindly accept every consent and proceed to
reject the application for deemed conveyance? The answer, to my mind,
appears to be in the negative. Though the Competent Authority cannot
conduct a detailed enquiry into the validity of consents, it can prima
facie satisfy itself as to whether there exists a consent within the
meaning of Section 7 of MOFA or not. A party aggrieved by the decision
of Competent Authority can file a suit and seek a declaration to the
contrary from Civil Court.


37.      There is fine distinction between ‘existence of consent’ and
‘validity of consent’. While the Competent Authority can record a finding
about ‘existence’ of consent, it cannot determine the issue of ‘valid’
consent, which inquiry would fall squarely into the realm of a Civil
Court. However, whether mere production of a consent letter would
ouster jurisdiction of the Competent Authority is the issue for
consideration.


38.      Promoters and developers do incorporate wide and blanket clauses
in the Agreements for Sale for recognising their entitlement to milk
future development potential in the land and the building. These are
popularly known as ‘blanket consent’ clauses. By now, the law is well
settled that such blanket consent clauses are ineffective/unenforceable
and do not entitle a developer to carry out additional construction in the
building or in the layout. While seeking consent of flat purchasers for
putting up additional construction in the building or in the layout, it is
mandatory that a full disclosure is made to the flat purchasers about the


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nature of additional construction. This would include disclosure of the
existing development potential, the additional development potential
made available, number of additional floors and additional flats to be
constructed etc. A developer cannot simply secure consent to put up
additional construction without making disclosure of the necessary
details. By now, the law is well settled in this regard by judgments of this
Court in Dosti Corporation, Eternia CHSL and Ors. Vs Lakeview
Developers and Ors.11 and Rajkumar Gulati and Ors. Versus. S.D.
Corporation Pvt. Ltd. and Ors12.


39.      Over the period of time, the promoters have exhibited a tendency
to circumvent the statutory provisions under MOFA about embargo on
additional construction contrary to disclosures. Obtaining blanket
consents from flat purchasers was one of the modus operandi, which
Courts were required to hold as unenforceable. After the blanket consent
clauses are held to be unenforceable, the developers have in some cases
started segregating the blanket consent clause from the Agreements and
printed the same in the form of a separate letter. The clause is virtually
the same empowering additional construction without adequate
disclosure. However, the same is in the form of a separate letter. The
issue for consideration is if such kind of consent letters are produced,
whether the Competent Authority would immediately lose jurisdiction
to decide the application of deemed conveyance on the ground that the
full construction as per the consent letter is yet to be completed? Again,
the answer to my mind appears to be in the negative. Some prima facie

11
      2015 SCC OnLine Bom 723
12
       2025 SCC Online Bom 4370
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inquiry by the Competent Authority into ‘existence’ of consent would be
necessary and production of such letters would not mean that existence
of consent is proved. It can record a finding that the consent letters do
not conform to the requirement of Section 7 of MOFA. Such finding
would be rebuttable and can be questioned by the aggrieved developer
before the Civil Court. If it is held that the competent authority must
reject the application for deemed conveyance upon production of such
letters containing blanket consent clauses, the developers would take
disadvantage of such situation and would thereby delay conveyance of
land by securing such letters from flat purchasers while selling the flats.


40.      Thus, the Competent Authority needs to make a prima facie
enquiry into existence or otherwise of consents within the meaning of
Section 7 of MOFA even while deciding application under Section 11 of
MOFA. It cannot blindly rely upon the defence taken by developer that
flat purchasers have consented to additional construction. It can conduct
a prima facie inquiry into the aspect of disclosure preceding the consent
and if it finds that the consent secured is without disclosing any details
of additional construction, it can ignore the consent letters and proceed
to convey the land. What it cannot conduct is an inquiry into adequacy
of disclosure. To illustrate, if consent for putting up additional
construction of disclosed area is secured, Competent Authority cannnot
go into issue as to whether disclosure includes information about
number of floors/flats, plinth of additional structure etc. This inquiry
would be about validity of consent and outside the scope of inquiry of
the Competent Authority. However, if a mere blanket consent is

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produced, the Competent Authority can look into the same and hold that
there is no consent.


41.      Now I proceed to determine whether in the facts of the present
case, the flat purchasers indeed consented to additional construction
over the building. Perusal of the consent letters would indicate that the
draft of the same was apparently prepared by the developer and flat
purchasers have signed the same either before or simultaneously or after
registration of their individual agreements. The letters state that the
purchasers had examined the approved plans for vertical extension of
the building and that they had no objection to the construction of the
same. The consent letters also refer to the proposed development plan of
2034, as well as Notification dated 16 November 2016 or ‘any future
Circular, Notification, DCR, etc.’ related to additional FSI and fungible
FSI, TDR and recognises right of the developer to make additions,
alterations, raise storey and other structures in the building.


42.      Since consent letters referred to examination of the ‘approved
plans’, this Court repeatedly enquired with Mr. Joshi about the exact
plan which was allegedly disclosed to the flat purchasers at the time of
securing their consents. Till the petition was heard, Respondent No.2
had not placed on record any plan which was approved by MCGM at the
time of execution of the consent letters. On the contrary, it was always
the stand of Respondent No.2 that the revised Commencement
Certificate was issued for construction of 7th and 8th floor in the year
2020. However, during the course of hearing and even after the hearing

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ended, Mr. Joshi has placed on record copies of several plans. He has
placed on record the plan which was allegedly submitted to MCGM for
approval in the year 2017.       He has referred to the said plan as a
‘Concession Approval’. However, there is nothing on record to indicate
that the plan allegedly submitted to MCGM for approval in September
2017, was approved and that such approved plan was brought to the
notice of the flat purchasers. Mr. Joshi has relied on a flowchart to
demonstrate as to how the plan submitted in September 2017 was
approved on 8 November 2017. Even if it is momentarily accepted that
the plan was indeed approved by MCGM on 8 November 2017, it is seen
that most of the consent letters are signed prior to 8 November 2017.
Only 7 consent letters in respect of 7 flats are apparently signed after 8
November 2017. There are total 24 flats in the building out of which 23
flats are sold. This means that the consent letters in respect of 16 flats
are executed before the alleged sanction of plan on 8 November 2017. It
therefore becomes difficult to accept that the flat purchasers were even
shown the approved plans for the purpose of securing their consents. In
respect of majority of flats, no approved plan in respect of 7 th and 8th
floor of the building existed when their alleged consents were obtained.


43.      The case thus clearly involves a scenario where Respondent No.2-
developer foresaw the advent of Development Control and Promotion
Regulations for Greater Mumbai, 2034 (DCPR, 2034) when he sold the
flats to the flat purchasers. DCPR, 2034 came into effect from 13
November 2018, before which construction of the building was already
completed and Occupancy Certificate was issued on 7 September 2016.

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Being a professional developer, Respondent No.2 was aware of the fact
that there was likelihood of increase in the FSI/development potential in
respect of the plot and he smartly secured blanket consent letters from
the flat purchasers that he is entitled to make use of additional FSI that
may be sanctioned by DCPR, 2034. The consent letters specifically refer
to DCPR, 2034 as well as to any subsequent Circular/Notification which
may make available additional FSI/BUA. Thus, the consent letters are
nothing but mere separation of typical blanket consent clauses in the
Agreement for Sale and the incorporation of the same therein in the
letters. As observed above, most of the flat purchasers were made to
sign the consent letters at the time of booking of the flats or at the time
of registration of their Agreements. 5 + 8 = 13 consent letters are
executed before or at the time of execution of flat purchase agreements.
The flat purchasers possibly have signed those letters without being
aware of the exact nature of additional construction that Respondent
No. 2 was planning to effect on the building.


44.      In fact, in the flat purchase agreements, there is a picture of the
building ‘Rose Villa’, which clearly shows that the same was to comprise
of only 6 floors. These flat purchasers saw the six storeyed building and
purchased flats therein. The photographs of the building would indicate
that construction thereof is complete in all aspects. There is overhead
tank and terrace above the six floors of the building. For putting up
additional floors, the overhead tank will have to be demolished and
constructed again above the 8th floor. By now, a period of 10 long years
has elapsed from the date of issuance of Occupancy Certificate. The

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building has already started showing signs of deterioration in terms of
external paint etc.    It is difficult to conclude that the building is
incomplete in any manner. The photographs show that construction of
the building is complete in all sense.


45.      Mr. Joshi has placed on record photographs of the building to
suggest there was already a provision made for construction of
additional floors. He has contended that the columns are maintained for
vertical extension on the terrace and provision is made for taking the lift
upto 7th and 8th floors. This, in my view, is not sufficient to infer that
there is proper disclosure made to the flat purchasers that 7 th and 8th
floor of the building were planned to be constructed. This is a typical
tendency of the promoters and developers to leave open the beams and
columns on the terrace of the building with the aim of exploiting future
development potential by construction of additional floors/flats. It
therefore becomes difficult to conclude that Respondent No.2 had
secured individual consents within the meaning of Section 7 of MOFA
for carrying out construction of additional floors in the building.


46.      The subsequent development permissions granted by the
Municipal Corporation post the year 2020 are outcome of additional
development potential made available under DCPR, 2034. This Court
has repeatedly held that additional development potential made
available due to change in the DCPR regime cannot be a ground for a
developer to put up additional construction. If any additional
development potential has become available, the same would belong to
the society and not to Respondent No.2. Following observations of this
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Court in Dosti Corporation (supra) in this regard are apposite:

         86. In the said judgment, it is held that if the developer wants to make
         additional construction which is not a part of the layout, consent of the flat
         purchasers would be required. It is held that once the buildings shown in the
         approved plan are completed and possession is handed over, the Developer
         cannot contend that because he has not formed the Society and because he
         had not conveyed the property he can take advantage of the additional FSI
         which became subsequently available. Such FSI will go to the society to
         whom the land had to be conveyed. It is held that the advantage of the FSI
         would be taken only when the building is under construction and only for the
         buildings forming part of the development plan or layout plan already
         approved. It is held that subsequent amendment of layout plan without the
         consent of the flat purchasers was not permissible. Therefore, once the
         building is completed in terms of the plan and the flat purchasers are to be put
         in occupation, permission of the flat purchasers would be required. If
         subsequently FSI becomes available under the Development Control
         Rules, it would be available to the Society to whom the land had to be
         conveyed.

                                                                     (emphasis supplied)



47.      In Ariisto Realtors (supra), this Court thwarted an attempt on the
part of the developer to delay conveyance with a view to milk the
additional development potential made available under DCPR 2034. This
Court held in para-46 of the judgment as under:

         46. The objective of the Petitioner behind opposing conveyance must also be
         appreciated. In the present case, filing 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 flat
         purchasers and would continue to take benefit 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 benefit of its own wrong, who is
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         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 flows out of DCPR 2034,
         the same would belong to Respondent 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.



48.      In view of the above discussion, I am of the view that the consent
letters relied on by Respondent No. 2 cannot be a reason for rejecting
the application of the Petitioner for deemed conveyance. What are
executed by the members of Petitioner society are mere blanket
consents for putting up additional construction based on FSI made
available under the DCPR 2034, without disclosing the plans for such
additional construction. The flats are sold and the consents are obtained
when the new DCPR was on the cusp of being introduced. The additional
BUA sanctionable under the DCPR 2034 would belong to the Petitioner
society and not to Respondent No.2-developer. If Respondent No.2-
developer wanted to retain the benefits flowing out of DCPR 2034, he
ought not to have sold the flats till introduction of DCPR 2034 and could
have got the plans revised as per DCPR 2034 and then sought consents
of the flat purchasers for additional construction. Once the Respondent
No. 2 took the risk of selling the flats in the building constructed up to 6
floors by utilizing the entire FSI potential then available, he lost the
right to add more floors to the building as the twin MOFA obligations to
form a society within 4 months of sale of minimum number of flats and
to convey the right, title and interest in the land kicked in.



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49.      Respondent No.2 had placed on record before the Competent
Authority, certificate of his architect dated 12 March 2024 which
indicates that in the original plan, BUA of the building was 1615.88 sq.m.
and under the revised development permission dated 8 July 2020,
additional BUA of 323.26 sq.m. is made available for construction of 7 th
and 8th upper floors in the building. Respondent No.2 proposes to
construct 5 residential flats in the building by adding two more floors.
The Certificate of the Architect dated 12 March 2024 reads thus:


         Date: 12-03-2024

         This is to certify that

         The building on plot bearing C.T.S. No. 725-A (old C.T.S. No 725, 725/1 & 2) of
         village Ambivali at Ceaser Road, Andheri West, Mumbai -400058 has been
         granted O.C.C. for the building comprising of Stilt floor + 1 st to 6th upper floor
         vide letter No. CHE/WS/0258/K/337(NEW) dated 07-09-2016 for residential use
         and thereafter amended concessions were approved by Hon'ble M.C. vide his
         note sheet dated 07-11-2017 in lieu of Plot potential 0.50 additional FSI + 0.90
         Admissible TDR + Fungible Compensatory area for 7 th & part 8th upper floor.
         Accordingly amended plans were approved for upper 7 th floor & part 8th upper
         floor vide letter No. CHE/WS/0258/K/337(NEW) dated 17-03-2020 and
         accordingly C.C. was granted on 08-07-2020 upto the top of the part 8 th floor +
         L.M.R. + O.H.T.

         Further the built up area as per O.C.C. plan and Approved Amended plan is as
         follows:
          Approval     Built Up Area       Building Status          User
          O.C.C.       1615.88 Sq.Mts. Stilt floow + 1st Residential
                                            th
                                       to 6 Upper floor
          Amended      323.26 Sq.Mts.      7th and part 8th         7th floor Residential Part 8th
                                           upper floor              floor partly Residential user
                                                                    and partly Fitness center
                                                                    and Society office
          Total        1939.14 Sq.Mts. Stilt floor + 1st to
                                       7th upper floor +
                                       part 8th Floor

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         We further certify that as per amended approved plan 5 residential unit will be
         constructed along with common amenities such as society office & Fitness
         center aggregating 29 nos. of residential unit in entire building. i.e. Stilt floor +
         1st to 7th upper floor + part 8th upper floor.

         For Vistar Architects
         Sd./-
         Ar. Kiran Rokadiya
         Partner


50.      Mere provision of additional facility of fitness center and society’s
office on the 8th floor in the proposed development may not entitle
Respondent No.2 to put up additional construction on the building,
which has received Occupancy Certificate in the year 2016. Though this
issue cannot be conclusively decided in these proceedings, these
observations are made in the context of Petitioner’s right to seek
conveyance of the land and the building.


51.      Mr. Joshi has strenuously relied on averments made by the
Petitioner in its rejoinder filed before the Competent Authority in
support of his contention that there is admission of existence of valid
consents. It appears that the society had initially not disclosed the
consent letters in the application made under Section 11(3) of MOFA.
Along with its affidavit in reply, Respondent No.2 relied on the consent
letters. In its rejoinder, the society dealt with the consent letters by
pleading in paras-14 and 33 of the rejoinder as under:

         14. The Respondent has deliberately delayed the registration of the Applicant
         society, failed to commence the so called construction in time despite
         receiving the NOCs from the members in the year 2017. Now, the Respondent
         is stalling the conveyance in favour of the Applicant.


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         33. With reference to para 31 & 32, the Applicant states that there is no
         additional or balance FSI as falsely claimed by the Respondent and the
         Respondent has purchased TDR to gain more profits and it can be found in
         their own reply at para 8. The RP is talking about the blanket consent taken by
         the Respondent during the execution of the individual agreements under
         section 4 of MOFA, which is not maintainable in the eyes of law as it is not
         consent within the meaning of Section 7 (1) of the Maharashtra Ownership of
         Flats Act, 1963 ("MOFA"). Furthermore, the NOCs taken by the Respondent to
         carryout additional construction in the year 2017 is hereby withdrawn by the
         Applicant due to the hopeless behaviour of the Respondent and failure to
         complete his duties on time.


52.      From the contents of paras 14 and 33 of the rejoinder, it is difficult
to infer that valid consents were given for construction of additional
floors of the building. On the other hand, the society took a specific
stand that what was secured were mere blanket consents. Those blanket
consents are withdrawn by the society and by its members. Therefore,
mere use of the word ‘withdrawn’ in the affidavit-in-rejoinder does not
mean that there was an admission of the existence of valid consents for
the construction of the 7th and 8th floors of the building.

53.      In my view, the case represents a typical tendency on the part of
the developers to put up additional construction by making use of
additional development potential made available due to change of
policy/regime. The developer has relied upon Notification dated 16
November 2016 by which Regulation No.34 of DCR, 1991 was modified in
the light of enactment of Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The
Notification dated 16 November 2016, by itself, did not make available
any particular TDR. On the other hand, the original plan indicates that
TDR has already been loaded on the plot for construction of building


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upto 6th floor. What is taken advantage of by Respondent No.2 is the
benefit of fungible FSI and other areas made available under DCPR, 2034
while seeking sanction for revised plans. Once Occupancy Certificate
was secured in respect of the building which was fully constructed, it
was impermissible for the developer to once again apply for revision in
the plans for construction of additional floors in the building.

54.      Ordinarily, after sale of minimum number of flats in the building,
an obligation was imposed on the Promoter to form and register a
society under the provisions of Section 10 of MOFA read with Rule 9 of
MOFA Rules. The promoter has, however, violated the said obligation
with impunity and did not form society. Even when members came
together and applied for formation of the society, Respondent No.2
opposed the same. He litigated upto this Court by filing WP (St.) No. 190
of 2023 for opposing formation of the society. The objective behind his
opposition to formation of the society was clear. He did not want to
convey the land and wanted to retain the ownership of the land so as to
milk the future development potential in respect of the plot. Such a
tendency on the part of the promoter needs to be nipped in the bud.
Construction of the building is completed in the year 2016. Albeit with
some delay, the society is registered on 10 November 2022. It is now
time for Respondent No.2 to exit the site and not to expect construction
of additional floors on the building. If any additional FSI/BUA is
generated in respect of the plot on account of advent of DCPR, 2034 or
by virtue of any Notification/Circular post grant of Occupancy
Certificate, the same is now the property of the society. Respondent
No.2 cannot own or exploit the same.
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55.      It also appears that Respondent No.2 has embroiled itself into
litigations over its failure to pay the debts to the creditors. Respondent
No.2 has been under CIRP for a considerable period of time. Certain
adverse orders are passed against the previous Resolution Professional
of Respondent No.2 and now the Resolution Professional is replaced.
However, this Court is not going into the details of CIRP pending against
Respondent No.2. Suffice it to observe that Respondent No.2 is not
entitled in law to put up additional construction in the building.
Additionally, it has disabled itself for a considerable period of time from
acting on the revised development permissions secured from MCGM. As
observed above, the revised development permissions are sanctioned by
MCGM only on account of unlawful denial of conveyance of the land to
the society by Respondent No.2. If the society was timely formed and
conveyance was timely effected, the society would have been the owner
of the land and there would have been no question of Municipal
Corporation entertaining any application of Respondent No.2 for
revision of the development plan.


56.      In view of the above discussion, both the grounds on which the
Competent Authority has rejected the application for deemed
conveyance are found to be unsustainable. The impugned order dated
29 July 2024 is indefensible and deserves to be set aside.                    The
proceedings deserve to be remanded to the Competent Authority for
issuance of certificate of deemed conveyance in respect of the land and
the building in favour of the Petitioner-society.

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                         57.      I accordingly proceed to pass the following order:


                                  (I) The order dated 29 July 2024 passed by the Competent
                                  Authority is set aside.
                                  (ii) Application No.8/2024 filed by the Petitioner-society is
                                  remanded to the Competent Authority for limited purpose of
                                  issuance of certificate of unilateral deemed conveyance in respect
                                  of the land and the building in favour of the Petitioner-society.


                                  (iii) Parties shall appear before the Competent Authority on 12
                                  October 2026 along with copy of this order downloaded from the
                                  website of the Court.


                                  (iv) The Competent Authority shall proceed to decide the
                                  remanded proceedings and shall issue the certificate of unilateral
                                  deemed conveyance in favour of the Petitioner-society as
                                  expeditiously as possible, preferably within a period of 3 months.


                         58.      With the above directions, the Writ Petition is allowed. Rule is
                         made absolute. There shall be no order as to costs.




                                                                                    (SANDEEP V. MARNE, J.)




                          katkam
Signed by: Sudarshan R. Katkam                                      Page No. 45 of 45
Designation: PS To Honourable Judge
Date: 06/10/2026 20:44:58


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Lawyer court records for this case

Associated through the court’s case reference.

For a signed copy suitable for filing, refer to the court's website.