MUMBAI: Last week, the Bombay High Court provided relief to three Vile Parle housing societies comprising ten buildings constructed in the 1970s and two from November 1990. The court upheld the deputy registrar’s authority to unilaterally grant deemed conveyance of land along with the buildings, ruling that future FSI potential concerning portions of land designated for public amenities should not hinder the process.
In a ruling on June 18, Justice Sandeep Marne stated, “The conveyance of the land intended for the societies cannot be postponed until the municipal corporation acquires the land and compensates the petitioner.”
Justice Marne expressed skepticism about the builder’s proposal to utilize development rights from reserved land for the construction of two additional buildings, describing it as “preposterous.” Nonetheless, he granted the builder some partial relief.
In 2017, a builder challenged the deputy registrar’s decision to grant unilateral deemed conveyance of more than five acres of suburban land, along with the existing buildings, to three cooperative housing societies. Justice Marne subsequently set aside the registrar’s 2017 order allowing deemed conveyance of the entire five acres, directing instead that only four acres be conveyed.
The societies, represented by senior counsel Birendra Saraf, demonstrated a willingness to forgo claiming title to over an acre, which the court acknowledged. The high court ruled that the builder, represented by counsel Mahendra Ghelani, can seek benefits in terms of transferable development rights (TDR) related to portions of land reserved for a municipal market, primary school, and land already appropriated by the BMC for road widening, as well as areas encroached upon by slum dwellers.
Notably, the court remarked that TDR can be monetized, is tradeable, and does not necessarily need to be utilized for further construction on the plot.
The builder had committed to constructing ten buildings on the plot, securing TDR after surrendering land for a DP road, which led to the construction of two additional buildings, while two more remained planned. However, a dispute over the amount of land surrendered delayed the completion of these additional buildings.
A housing society representing flat owners from ten buildings opposed this TDR-based construction. The society filed a lawsuit in 1985 seeking conveyance of the full five acres. In 1997, the civil court ordered limited conveyance only for the land where the ten buildings stood. After withdrawing an appeal challenging this limited conveyance, the society, along with two other cooperative housing societies for the additional buildings, approached the deputy registrar under the Maharashtra Ownership Flats Act (MOFA) for deemed conveyance of all five acres, which was granted in May 2017.
More than thirty years have elapsed since the construction of the last building, Saraf argued, emphasizing the urgency of granting conveyance, a legal obligation for builders.
The court countered the builder’s claim that the deputy registrar could not address the society’s plea for deemed conveyance following the withdrawal of its appeal, deeming this argument entirely misplaced.
