Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Bom) 873

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AMIT BORKAR, J.
Rashesh Cooperative Housing Society Limited - Petitioner
Versus
State of Maharashtra, through Government Pleader, Appellate Side, High Court, Bombay & Ors. - Respondents
Writ Petition No. 10961 of 2025
Decided On : 28-04-2026
Advocates Appeared :
For the Petitioner : Mr. Bhavin Gada with Mr. Deepak Shukla and Mr. Praveen Maurya i/by BNS Legal.
For the Respondents : Mrs. M.S. Srivastava, AGP, Mr. Venkatesh Dhond, Senior Advocate with Mr. Akshay Patil, Mr. Suraj N. Naik, Ms. Ketkee Kamble, Ms. Rashmi Raghavan i/by Mr. R.D. Suryawanshi, Mr. Nimesh Bhatt.

Advocates:
For the Appellants/Petitioners: Bhavin Gada, Deepak Shukla, Praveen Maurya i/by BNS Legal
For the Respondents: M.S. Srivastava, Venkatesh Dhond, Akshay Patil, Suraj N. Naik, Ketkee Kamble, Rashmi Raghavan i/by R.D. Suryawanshi, Nimesh Bhatt

In deemed conveyance for TDR layouts, society gets plinth area plus distinctly demarcated appurtenant marginal open spaces per sanctioned plans, and undivided proportionate recreational ground share; conveyance mandatory under MOFA beyond mere superstructure.

Headnote:(A) Maharashtra Ownership Flats Act, 1963 - Section 11(1) - Deemed conveyance - Government Resolution dated 22 June 2018, Guideline (iv)(2) - In TDR-loaded multi-building layouts, cooperative housing society entitled to conveyance of plinth area plus separately identifiable appurtenant area (marginal open spaces functionally necessary for building use, light, air, ventilation, fire safety per sanctioned plans and building regulations), plus undivided proportionate share in recreational ground; plinth not percentage of net plot but actual ground footprint; competent authority must demarcate plinth and appurtenant distinctly; prior order limiting to plinth set aside on remand, fresh rejection quashed, areas fixed as plinth 1151.56 sqm, appurtenant 1050 sqm, total exclusive 2201.56 sqm, RG share 703.62 sqm undivided. (Paras 21, 47-66)

(B) Appurtenant area - Scope - Physically contiguous, regulation-dependent open spaces (front, side, rear margins, setbacks, access) subsidiary to building, tested by functional dependence not convenience; distinct from common layout amenities (recreational spaces, playgrounds) vesting collectively in all owners proportionately; determined factually from sanctioned plans, not abstract proportion of built-up. (Paras 22-46)

(C) Transfer of Property Act, 1882 - Section 8 - Incidents of property pass with transfer unless contrary intention; appurtenant land necessary for beneficial enjoyment passes as legal incident. (Paras 24, 26, 39)

Facts of the case:
Cooperative housing society applied for deemed conveyance of land under building constructed utilising TDR in larger layout; developer withheld despite occupation certificate; after initial partial grant to plinth only set aside on writ and remand for fresh consideration per GR 2018 distinguishing plinth and appurtenant, authority rejected claim; society filed writ challenging rejection.

Findings of Court:
Plinth area 1151.56 sqm; appurtenant area 1050 sqm; total exclusive conveyable 2201.56 sqm; undivided proportionate recreational ground share 703.62 sqm; competent authority to issue fresh deemed conveyance certificate incorporating areas with survey details within 8 weeks.

Issues: Scope of appurtenant area under MOFA, building bye-laws, GR 2018 (marginal setbacks or wider amenities?); proportionate share formula in TDR layout (plinth alone or built-up FSI ratio?); entitlement to recreational ground share and quantum.

Ratio Decidendi: Deemed conveyance under MOFA s.11 mandates transfer of plinth plus appurtenant open spaces per sanctioned plans' classification satisfying GR (iv)(2); appurtenant limited to building-specific regulatory margins via functional dependence test; recreational ground as common undivided proportionate right; figures from sanctioned-plan-linked architect certificates prevail over proportional allocation absent demarcation.

Result: Writ petition partly allowed.

Table of Content
1. factual timeline of deemed conveyance application. (Para 1 , 2 , 3 , 4)
2. society entitled to appurtenant area and recreational share. (Para 5 , 6 , 7 , 8 , 9)
3. appurtenant area limited to contiguous marginal open spaces. (Para 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20)
4. issues: appurtenant scope, share formula, rg entitlement. (Para 21)
5. mofa conveyance includes necessary appurtenant land. (Para 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31)
6. appurtenant encompasses regulatory margins, distinguishes common areas. (Para 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47)
7. plinth from sanctioned plans, not proportionate built-up. (Para 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58)
8. deemed conveyance: 2201.56 sqm exclusive plus rg share. (Para 59 , 60 , 61 , 62 , 63 , 65 , 66 , 67)

JUDGMENT :

1. By the present petition instituted under Articles 226 and 227 of the Constitution of India, the petitioner has called in question the legality, correctness, and propriety of the judgment and order dated 8 July 2025 passed by respondent No.2 in Application No.379 of 2023.

2. The facts giving rise to the present proceedings, as set out by the petitioner, may briefly be stated thus. The petitioner is a co-operative housing society duly registered under the provisions of the Maharashtra Co-operative Societies Act, 1960. The building of the petitioner society came to be constructed by respondent No.3, of which respondent Nos.4 to 6 are stated to be the partners. It is the case of the petitioner that late Manharlal B. Mehta and Varsha M. Mehta were owners and/or otherwise entitled in respect of 23 parcels of land situated at Village Bhayandar forming part of a larger tract of land. The development plan/layout in respect of the larger property came to be sanctioned by the Mira Bhayander Municipal Corporation on 23 March 2006. Thereafter, on 5 August 2006, development rights together with FSI in relation to the entire land were granted in favour of respondent No.3. Revised commencement certificates thereafter came to be issued by the competent local authority on 23 March 2006 and 26 June 2007 respectively. Subsequently, an occupation certificate in respect of the building of the petitioner society was issued by the local authority on 2 December 2013.

3. The petitioner society came to be formed on 1 December 2015. According to the petitioner, notwithstanding such formation, respondent No.3 failed and neglected to execute conveyance in favour of the petitioner society. It is further stated that on 22 June 2018, the Government issued notification for implementation of the scheme relating to deemed conveyance. Thereafter, the petitioner obtained survey report of the subject land prepared by Mr. M.B. Rane on 4 January 2022. A legal notice through Advocate thereafter came to be issued by the petitioner society on 11 May 2023 to respondent Nos.2, 3 to 7 and one Pravin Ranchorebhai Patil and others. Respondent No.8, by communication dated 29 May 2023, granted it’s no objection before respondent No.2 in respect of conveyance of the land in favour of the petitioner. On 9 June 2023, the petitioner society further obtained Architect’s Certificate/Report regarding the proportionate area stated to be conveyable in favour of the petitioner society. On 19 June 2023, the petitioner society instituted Application No.379 of 2023 before respondent No.2 seeking issuance of certificate of deemed conveyance in accordance with the applicable Government Resolution. Pursuant thereto, respondent No.2 issued notice in Form X on 6 July 2023 and also caused public notice to be published on 11 July 2023. Respondent No.4 filed reply affidavit on 31 July 2023. Thereafter, respondent Nos.3, 4 and 7 filed joint reply affidavit on 4 September 2023. The petitioner filed rejoinder affidavits to the replies of the respondents on 21 August 2023 and 11 September 2023. Written submissions also came to be tendered by th

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2026 Supreme(Bom) 873

In deemed conveyance for TDR layouts, society gets plinth area plus distinctly demarcated appurtenant marginal open spaces per sanctioned plans, and undivided proportionate recreational ground share; conveyance mandatory under MOFA beyond mere superstructure.

Cases Referred (3)