GARDEN COURT CO-OP. HSG.SOC. LTD THR. SECRETARY RAMAKANT SINGHALversusTHE COMPETENT AUTHORITY AND DISTIRCT DEPUTY REGISTRAR OF CO-OP SOC. THANE AND ORS

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                      AGK
                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CIVIL APPELLATE JURISDICTION

                                        WRIT PETITION NO.976 OF 2023

                      Garden Court Cooperative Housing
                      Society Ltd., through Secretary
                      Ramakant Singhal                              … petitioner
                                  V/s.
ATUL                  The Competent Authority & District
GANESH
KULKARNI              Deputy Registrar of Coop. Societies,
Digitally signed by
ATUL GANESH
KULKARNI
                      Thane & Others                                … respondents
Date: 2026.03.10
11:00:53 +0530




                      Mr. Raju Suryawanshi with Mr. Suraj N. Naik for the
                      petitioner.
                      Ms. S.S. Jadhav, AGP for respondent No.1-State.
                      Mr. M.P. Rao, Senior Advocate i/by Ms. Sheetal Mhatre
                      for respondent No.2.


                                                  CORAM       : AMIT BORKAR, J.

                                                  DATED       : MARCH 9, 2026
                      P.C.:

                      1.      By the present writ petition filed under Article 227 of the
                      Constitution of India, the petitioner challenges the order dated 14
                      June 2022 passed by respondent No.1. By the said order, the
                      Competent      Authority   partly   allowed   Deemed    Conveyance
                      Application No.70 of 2022 and granted conveyance of land
                      admeasuring 2781.63 square meters in favour of the petitioner
                      society, as against the claim of 4464 square meters made by the
                      petitioner.




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2.    The facts giving rise to the present petition may be stated as
follows. The buildings of the petitioner society are situated on a
total plot of land admeasuring 4916.13 square meters. The said
land forms part of the following survey numbers. First, Old Survey
No.666, New Survey No.255, Hissa No.2, admeasuring 3733.88
square meters out of the total land admeasuring 18440 square
meters. Second, Old Survey No.666, New Survey No.255, Hissa
No.3, admeasuring 660 square meters. Third, Old Survey No.669,
New Survey No.254, Hissa No.1, admeasuring 522.25 square
meters out of the total land admeasuring 1440 square meters. The
property is situated at Village Bhayandar, Taluka and District
Thane. The construction on the said land was undertaken in
accordance with the plans approved by the Mira Bhayandar
Municipal Corporation.

3.    The respondent No.2, being the builder and promoter,
proposed to develop a residential project known as “Garden
Court”. The project comprised three buildings, namely Building A,
Building B and Building C. In furtherance of the said project, the
respondent No.2 obtained necessary permissions for construction.
A Commencement Certificate dated 17 November 2007 bearing
No. MI.BHA/MANAPA/NAR/2770/2007-2008 was issued for
Buildings B and C. A Revised Commencement Certificate dated 29
December 2007 bearing No. MI.BHA/MANAPA/NAR/3462/2007-
2008 was issued for Building A. At the time of launching the
project, the respondent No.2 circulated pamphlets and brochures
to prospective flat purchasers. These documents disclosed only
three buildings in the project, namely Building A consisting of stilt



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plus nine upper floors, and Buildings B and C consisting of stilt
plus seven upper floors each. No disclosure was made in the said
material regarding any future development proposed on the said
property.

4.    Agreements for sale were thereafter executed between the
respective flat purchasers and respondent No.2 under the
provisions of the Maharashtra Ownership Flats Act, 1963 and the
Rules of 1964. Subsequently, the respondent No.7 Municipal
Corporation granted an Occupation Certificate dated 27 May 2011
in respect of the buildings constructed in the petitioner society,
namely Building A consisting of stilt plus nine upper floors and
Buildings B and C consisting of stilt plus seven upper floors. On the
same day, that is on 27 May 2011, the respondent No.7
Corporation issued a Revised Commencement Certificate in favour
of respondent No.2 permitting construction of a further building,
namely Building Type D consisting of stilt plus one upper floor
with a built up area of 248.22 square meters. Possession of the
respective flats was handed over to the purchasers sometime in the
year 2011. Thereafter a co operative housing society of the flat
purchasers came to be formed and registered on 16 June 2011
bearing Registration No. TNA/(TNA)/HSG/(TC)/22710/2011-12.

5.    According to the petitioner, the respondent No.2 had
disclosed only Buildings A, B and C in the brochures and in the
approved plans shown to the flat purchasers at the time of sale of
flats. In such circumstances, the respondent No.2 was under a
legal obligation to obtain prior consent of the flat purchasers of
Buildings A, B and C before seeking any revised permission for



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construction of Building D consisting of stilt plus one floor, as
contemplated under Section 7 of the Maharashtra Ownership Flats
Act, 1963. However, the respondent No.2 proceeded to obtain such
permission without obtaining the consent of the flat purchasers.
This, according to the petitioner, was in clear contravention of the
provisions of Section 7 of the Act of 1963.

6.    The petitioner contends that the statutory provision
contained in Section 7 prohibits the promoter from carrying out
alterations or additions in the structure of the building after the
approved plans and specifications are disclosed to the purchasers,
unless prior consent of the concerned flat purchasers is obtained.
In the present case, the respondent No.2 sought further permission
for construction of Building D without obtaining the consent of the
flat purchasers of Buildings A, B and C. The respondent No.7
Municipal Corporation also issued the revised permission in the
absence of such consent. According to the petitioner, this action is
contrary to the mandate of the statute. It is further the case of the
petitioner that respondent No.2 was under an obligation to convey
the right, title and interest in the land and building in favour of the
petitioner society within four months from the date of registration
of the society, as required under Section 11 of the Act of 1963.
However, despite the lapse of about eleven years and despite
repeated representations made by the petitioner society, no steps
were taken by respondent No.2 to execute the conveyance.

7.    In these circumstances, the petitioner society addressed a
legal notice dated 17 February 2021 to respondent Nos.2 to 6, who
are the builder, promoter and land owners. By the said notice, the



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petitioner called upon them to execute a conveyance transferring
the right, title and interest in the said property together with the
structures standing thereon in favour of the petitioner society.
However, the said notice did not yield any response. The petitioner
society therefore decided to invoke the statutory remedy available
under Section 11(3) of the Maharashtra Ownership Flats Act, 1963
by filing an application before respondent No.1, the Competent
Authority, seeking grant of unilateral conveyance in its favour.

8.    Accordingly, on 17 January 2022 the petitioner society filed
an application under Section 11(3) of the Act of 1963 before
respondent No.1 Competent Authority claiming conveyance of
land admeasuring 4464 square meters in its favour. The said
application came to be registered as Deemed Conveyance
Application No.70 of 2022. During the course of the proceedings
before the Competent Authority, respondent No.2 filed an
additional written statement on 18 April 2022 along with a
certificate issued by an Architect dated 12 April 2022. By relying
upon the said material, respondent No.2 contended that it had
obtained revised permission on 8 April 2022 for construction of
Building D. According to respondent No.2, by virtue of the revised
permission the built up area of Building D was increased from
248.22 square meters to 6284.47 square meters. It was therefore
contended that on a pro rata basis the maximum land area that
could be conveyed in favour of the petitioner society would be
only 2781.63 square meters and not 4464 square meters as
claimed by the petitioner.




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9.    The petitioner points out that the application under Section
11 of the Act was filed on 17 January 2022 whereas the revised
commencement certificate relied upon by respondent No.2 came to
be issued much later on 8 April 2022. The record further shows
that respondent No.2 had appeared before the Competent
Authority on 22 February 2022, 28 February 2022 and 28 March
2022. However, despite such appearances respondent No.2 did not
file its written statement. According to the petitioner, respondent
No.2 deliberately refrained from filing its reply as it was awaiting
the grant of revised permission from the Municipal Corporation.
The petitioner alleges that respondent No.2 intended to file its
reply only after securing such revised permission so that it could
rely upon the same to dispute the area claimed by the petitioner
society.

10.   It is the case of the petitioner that immediately after the
revised permission dated 8 April 2022 was granted, respondent
No.2 proceeded to file its written statement and additional written
statement on 12 April 2022 and 18 April 2022 respectively. By
doing so, respondent No.2 brought the revised permission on
record before the Competent Authority and sought to claim
entitlement for construction of Building D in accordance with the
revised sanctioned plan. The petitioner alleges that the intention of
respondent No.2 from the inception was to appropriate the
remaining land area which otherwise ought to have been conveyed
to the petitioner society. According to the petitioner, this attempt
was made under the guise of the revised permission and without
obtaining the consent of the flat purchasers. The petitioner further



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asserts that if the entire area of 4464 square meters had been
granted in favour of the petitioner society, respondent No.2 would
not have been entitled to claim any additional floor space index on
the said layout.

11.   The respondent No.1 Competent Authority thereafter
proceeded to decide the application and passed the impugned
order dated 14 June 2022. By the said order, the Competent
Authority partly allowed the deemed conveyance application filed
by the petitioner society. However, instead of granting the area of
4464 square meters as claimed by the petitioner, the Competent
Authority restricted the conveyance to an area of 2781.63 square
meters. It is this order which is challenged in the present writ
petition.

12.   Mr. Suryawanshi, Learned Advocate for the petitioner
submitted that the respondent No.1 failed to conduct proper
inquiry while deciding the area aought by the petitioner in its
application. The authority failed to consider the fact that revised
permission dated 11 April 2022 granted to the respondent No.2 in
respect of building Type-D of Stile + 16th upper floors was not
binding on the petitioner-society as no prior consent of the flat
purchasers of the petitioner was taken and that the said revised
permission dated 11 April 2022 was granted much belatedly after
filing of the said deemed conveyance application. He further
submitted that the authority failed even to peruse the Architect’s
Certificate and physical area survey report annexed to the
application and on the basis of which the petitioner had sought an
area of 4464 square meters.



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13.   He further submitted that the competent authority failed to
mention how much area from each of the two hissa numbers has
been granted to the petitioner. The respondent No.1 had only
mentioned the total admeasuring 2781.63 square meters which
has been granted to the petitioner. He submitted that generally an
application under Section 11 of the MOFA 1963 once filed is either
liable to be allowed or rejected in toto. If the competent authority
is of the opinion that the area being sought by the petitioner is not
justified, in that case the competent authority ought to have at
least directed the society to carry out necessary amendment in the
application in the area claimed, failing which the application is
liable to be rejected. However, instead of affording any such
opportunity, the competent authority proceeded to pass the order.
The competent authority itself cannot determine the entitlement of
area of the petitioner-society.

14.   Per contra, Mr. Rao, learned Senior Advocate on behalf of the
respondent-developer submitted that in the agreement executed
with purchasers, it was specifically stated that the developer shall
be carrying out future development. By specifying such recital in
the agreement, the developer gets protection of Section 7A of the
Maharashtra Ownership Flats Act, 1963. He, therefore, submits
that Section 7A entitles the respondent-developer to carry out
further construction. He submitted that earlier three attempts to
stall construction of building-D was unsuccessful and, therefore,
the petitioner initiated proceedings for deemed conveyance. He,
therefore, submitted that the writ petition is liable to be dismissed.




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REASONS AND CONCLUSIONS:

15.   The material placed on record shows that the residential
project in question was launched and marketed to the prospective
flat purchasers on the basis of plans and brochures which disclosed
only three buildings forming part of the layout. The promotional
material distributed by the developer at the time of sale clearly
represented that the project would consist of three residential
buildings. Acting on these representations, various purchasers
agreed to purchase flats in the project. Agreements for sale were
thereafter executed with them in accordance with the provisions of
the Maharashtra Ownership Flats Act, 1963.

16.   It is also not disputed that possession of the flats in these
buildings was handed over sometime in the year 2011. Shortly
thereafter, in June 2011, the co-operative housing society of the
flat purchasers came to be registered. Once the society was
formed, the statutory scheme under the Act obligated the promoter
to execute a conveyance of the land and building in favour of the
society within the prescribed period. The registration of the society
therefore created a legal right in favour of the society to obtain
conveyance of the property on which the buildings stand.

17.   The petitioner society, while filing its application for deemed
conveyance,    produced    supporting   documents     in   order     to
demonstrate the exact area of land which ought to be conveyed in
its favour. These documents include an Architect’s Certificate and a
physical survey report prepared after measurement of the property.
Both documents indicate that the area attributable to the buildings




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of the petitioner society comes to 4464 square metres. The
application for deemed conveyance was filed on 17 January 2022
before the Competent Authority under Section 11 of the Act.

18.   However, during the pendency of these proceedings the
developer obtained a revised permission from the municipal
authority. The revised permission is dated 11 April 2022. Relying
upon this revised permission, the developer contended before the
Competent Authority that additional development had now been
sanctioned and therefore the area available for conveyance to the
society stood reduced. On that basis the developer urged that the
society could be granted only 2781.63 square metres of land on a
proportionate basis. The Competent Authority appears to have
accepted this submission of the developer and consequently
restricted the conveyance to the said reduced area.

19.   The developer has strongly relied upon the clause in the
agreements for sale which, according to him, permitted future
development on the land. In support of this submission, reliance is
placed upon the decision of the Supreme Court in Jayantilal
Investments v. Madhuvihar Coop. Housing Society (2007) 9 SCC
220. It therefore becomes necessary to examine the legal position
explained in the said judgment and to understand the true scope of
the promoter’s right to undertake additional construction.

20.   The Supreme Court in the said decision considered the effect
of the amendments introduced in the Maharashtra Ownership
Flats Act, 1963, particularly the insertion of Section 7A by
Maharashtra Amendment Act 36 of 1986. The Supreme Court in




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Jayantilal Investments has made it clear that the right of the
promoter to construct additional buildings is not an unrestricted
right. Such construction must form part of the overall scheme or
layout plan of the project. The promoter can exercise this right
only when the development is carried out in accordance with the
approved layout and within the development potential of the plot.
In other words, the promoter does not obtain an unfettered right
to introduce entirely new construction at any stage merely by
relying upon a clause in the agreement.       The Supreme Court
further emphasised that even after the insertion of Section 7A, the
statutory obligations imposed upon the promoter under Sections 3
and 4 of the Act continue to operate with full force. These
provisions require the promoter to make true and full disclosure to
the flat purchasers regarding all relevant aspects of the project.
This includes disclosure of the nature and extent of common areas,
amenities and most importantly the development potential of the
land. The promoter must disclose the available Floor Space Index
and whether any part of such development potential has already
been utilised elsewhere. The agreement executed with the flat
purchasers must follow the prescribed statutory form and must
contain these disclosures. The judgment also highlights that under
the prescribed form of agreement, certain clauses are treated as
statutory and mandatory. These clauses require the promoter to
disclose the available FSI of the land and the manner in which it is
proposed to be utilised. The promoter must also disclose whether
any additional FSI or transferable development rights may be used
for development of the project. These disclosures are required so




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that the flat purchaser is fully aware of the entire development
scheme before entering into the transaction.

21.   The Supreme Court thus explained that the concept of
development rights must be balanced with the rights of the flat
purchasers. While the law permits construction of additional
buildings in accordance with the layout plan, the promoter
remains under a obligation to place the complete development
scheme before the purchasers at the time when agreements are
executed. The purchasers must know whether the project consists
of a single building or multiple buildings and what further
development is contemplated on the land.

22.   At this stage it becomes necessary to closely examine the
timing as well as the legal effect of the revised permission obtained
by the developer. The chronology of events is significant. The
deemed conveyance application was filed on 17 January 2022. At
that time the revised permission did not exist. The proceedings had
already   commenced before       the Competent      Authority. The
developer had also appeared in the proceedings on earlier dates.
However, the developer did not file any written reply at that stage.
The reply was filed only after the revised permission dated 11
April 2022 was obtained. This sequence cannot be overlooked. The
statutory right of the society to seek conveyance had already been
invoked before the Competent Authority. Once such proceedings
are pending, the promoter cannot defeat the claim of the society
by subsequently securing a fresh development permission and then
relying upon it to reduce the land which otherwise ought to be
conveyed. The law does not permit the promoter to improve his



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position during the pendency of the conveyance proceedings in a
manner that prejudices the rights of the flat purchasers. The
entitlement of the society must therefore be examined on the basis
of the project as originally disclosed and the material available
when the application was filed.

23.   The evidence placed before the Court indicates that at the
time when flats were sold, the purchasers were informed about
only three buildings forming part of the project. The brochures and
the plans shown to them did not disclose the construction of a
substantially larger additional building. In such circumstances, the
subsequent introduction of a much larger structure through a
revised permission raises a serious issue as to whether the
statutory requirement of obtaining consent of the purchasers was
complied with. The developer has not produced any material to
demonstrate that such consent of the flat purchasers was obtained
prior to securing the revised permission. In absence of such
consent, reliance upon the revised permission to curtail the
society’s entitlement to land becomes legally doubtful.

24.   When the principle laid down in Jayantilal Investments is
carefully examined, it becomes clear that the existence of such a
recital alone is not sufficient. The crucial requirement is whether
the entire development scheme was disclosed to the flat
purchasers at the time of sale and whether the additional
construction forms part of the sanctioned layout plan. Only when
the full scheme is placed before the purchasers does the question
of obtaining their consent not arise for additional construction
carried out in accordance with the layout plan. In absence of such



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disclosure, the promoter cannot rely upon Section 7A to justify
subsequent development which materially alters the project that
was originally represented to the purchasers.

25.   The impugned order passed by the Competent Authority also
suffers from serious deficiencies in its reasoning. The order merely
records that the society is entitled to an area of 2781.63 square
metres. However, the order does not explain how this figure has
been arrived at. The property involved in the present case consists
of more than one hissa number. The order does not indicate how
much area from each of these survey components is included in
the conveyance. Such absence of clarity creates uncertainty
regarding the exact extent and identity of the property to be
conveyed. Equally important is the fact that the order does not
discuss the Architect’s Certificate and the physical survey report
submitted by the petitioner. These documents formed the primary
basis of the petitioner’s claim for 4464 square metres. A quasi
judicial authority deciding a dispute of this nature is expected to
examine such evidence and record reasons if it chooses not to
accept the same. The impugned order, however, does not contain
any analysis of these documents. The reasoning therefore appears
incomplete and inadequate.

26.   Another procedural aspect also deserves consideration. The
Competent Authority has reduced the area claimed by the
petitioner without first giving an opportunity to the petitioner to
address such proposed reduction. If the authority was of the view
that the claim of 4464 square metres was excessive, it ought to
have directed the petitioner to clarify or amend its claim. The



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authority could also have required additional measurements or
evidence. Instead of adopting such course, the authority has on its
own determined a different figure and granted only that extent of
land.

27.     On an overall assessment of the record, the material
produced by the petitioner appears sufficient to support the claim
of 4464 square metres. The Architect’s Certificate and the physical
survey report constitute reliable technical evidence regarding the
extent of land attached to the buildings of the petitioner society.
The developer’s reliance upon a subsequently obtained permission
cannot override this evidence, particularly when the statutory
requirements regarding consent of purchasers have not been
demonstrated.

28.     In view of the foregoing discussion and reasons recorded
hereinabove, the following order is passed:

        (i)    The Writ Petition is allowed.

        (ii)   The impugned order dated 14 June 2022 passed by
        Respondent No.1 in Deemed Conveyance Application No.70
        of 2022 is quashed and set aside.

        (iii) Deemed Conveyance Application No.70 of 2022 filed
        by the petitioner society stands allowed in terms of the area
        claimed by the petitioner, namely 4464 square meters.

        (iv) Respondent No.1 Competent Authority shall take
        necessary steps for issuance of the conveyance certificate and
        for execution of unilateral conveyance in favour of the




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petitioner society in respect of the said area.

(v)   Rule is made absolute in the above terms. There shall
be no order as to costs.


                                        (AMIT BORKAR, J.)




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