1. Petitioner No.1-the firm-the builder/promoter, in the Application for deemed conveyance filed by the Society (Respondent No.2), before the Competent Authority and the District Deputy Registrar (Respondent No.1), under Section 11(3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, management, Transfer) Act, 1963 (for short, “the MOFA Act”), have challenged impugned order dated 5 May 2014 and also the consequential certificate. The Petitioners have also prayed for rehearing of the proceedings to the extent of balance FSI admeasuring 161.57 sq. mtrs. (the property) in the land bearing survey No. 253(Pt), Hissa No. 9/2, 15 to 18, 19/2, 20/2, 22/2, 23, 24, 25, 26/2, 27 to 30, situated at Village Virar, Tal. Vasai, Dist. Thane.

2. Most of the members, about 14 in numbers, entered into an agreement to sale in respect of the property in favour of Petitioner No.1 (the firm) in which Parag Jagnnath Choudhary is a partner. The other Petitioners executed a Power of Attorney in favour of Petitioner No.1. On 26 November 2001, Petitioner No.1 agreed to sell flat bearing No. 16 on the 4th Floor admeasuring 510 sq. ft. to one Rajendra Dattaram Rane. Clauses 20, 25 and 26 will indicate that Petitioner No.1 was specifically entitled to avail any additional FSI which may exist in the future. On 27 November 2006, the Architect of Petitioner No.1 issued a letter indicating that as per the area statement and as per sanctioned DC Rules, the balance FSI in respect of the entire plot of 3770 sq. mtrs. was 161.57 sq. mtrs. On 29 November 2011, the Architect of Petitioner No.1 submitted amended building plan for the building proposed on the property to the Deputy Director of Town Planning, Vasai Virar City Municipal Corporation.

3. On 20 April 2013, Respondent No.2 Society filed an application under Sub-Section 3 of Section 11 of the MOFA Act with the District Deputy Registrar, Thane and also the Competent Authority under the MOFA Act. On 11 December 2013, the Vasai Virar Municipal Corporation addressed a correspondence to the Petitioners in respect of pending Development permission of the property. On 16 January 2014, Petitioner No.1 filed a written notes of argument in deemed conveyance Application. On 29 January 2014, the Petitioners addressed a correspondence to the Deputy Director of Town Planning, Vasai Virar Municipal Corporation for Development permission in respect of the property. On 5 May 2014, Respondent No.1 passed the impugned order.

4. Agreement dated 26 November 2001 between the members of the Society and the builder-the firm (the Petitioner) though referred, total land admeasuring 3770 sq. mtrs., but the special provision in case of any additional FSI as agreed binds both:

Clauses 25 and 26 are relevant which read as under:

“25. IT IS AGREED BETWEEN the Builders and Purchaser/s that in case any additional F.S.I is granted or construction of additional floor or floors are allowed then the Builders are entitled to construct and dispose of the said additional construction and the Builders have reserved the right to construct the same additional construction mentioned above and dispose the same. The necessary covenant in the deed of conveyance to be executed in favour of Co-operative Housing Society shall be incorporated.

26. It is agreed that the Builders shall be entitled, without affecting the rights of the Purchaser/s to the said premises including the area thereof, to revise the Buildings plans in respect of the said buildings and to utilise the total F.S.I and the development rights available in respect of the said property by suitably modifying the Buildings plans in respect of the said premises as the Builders may desire and the Purchaser/s hereby irrevocably consent to the right of the Builders to revise and modify the Buildings plans in respect of the said premises from time to time.”

The Competent Authority, inspite of specific submissions, failed to take note of above clauses and the agr