Developer Cannot Restrict Society’s Conveyance to Plinth Area Merely Because TDR Was Used: Bombay High Court
Facts
Neelkanth Mansions & Infrastructure Private Limited developed a large integrated residential project known as “Neelkanth Greens” at Majiwada, Thane.
The project comprised multiple residential buildings, row houses, common amenities and infrastructure on land measuring approximately 56,654 square metres.
Neelkanth Greens Row House Co-operative Housing Society Limited consisted of purchasers of 12 completed row houses. The Thane Municipal Corporation had issued an occupancy certificate for the row houses on 17 July 2007.
On 10 September 2025, the Society applied under Section 11(3) of the Maharashtra Ownership Flats Act for unilateral deemed conveyance.
The Society sought conveyance of 929.84 square metres, comprising:
- 788.63 square metres as its proportionate share in the net plot area; and
- 141.21 square metres as its proportionate share in the recreational and amenity area.
By an order dated 30 January 2026, the District Deputy Registrar and Competent Authority allowed the application and issued a certificate of deemed conveyance in favour of the Society.
The developer challenged the order before the Bombay High Court.
The developer’s primary contention was that Transferable Development Rights measuring approximately 24,950.45 square metres had been used in the project. According to the developer, once TDR was used, the Government Resolution dated 22 June 2018 permitted conveyance only of the plinth and appurtenant area and not proportionate land based on the built-up area.
The Society argued that the TDR was not selectively loaded on one particular building. It had been distributed across all the buildings in the layout. Therefore, proportionate division of land remained possible and fair.
Issues
- Whether use of TDR in a multi-building layout automatically restricts deemed conveyance to only the plinth and appurtenant area.
- Whether proportionate land can be conveyed where TDR is distributed across all buildings in the layout.
- Whether paragraph 2(C)(vi)(2) of the Government Resolution dated 22 June 2018 creates an absolute prohibition against proportionate conveyance whenever TDR is used.
- Whether a completed society must wait until development of the entire layout is finished before seeking conveyance.
- Whether the Competent Authority correctly calculated and conveyed 929.84 square metres to the Society.
- Whether the High Court should interfere with the deemed conveyance order under Article 227 of the Constitution.
Petitioner’s Arguments
The developer argued that the Competent Authority had wrongly conveyed 929.84 square metres to the Society.
It submitted that approximately 24,950.45 square metres of TDR had been utilised in constructing buildings within the layout.
The developer relied upon paragraph 2(C)(vi)(2) of the Government Resolution dated 22 June 2018, which provides that where TDR is utilised in a layout, deemed conveyance should be granted according to the plinth and appurtenant area.
According to the developer, the Government Resolution created a clear distinction between:
- layouts where no TDR was used, in which proportionate land could be conveyed; and
- layouts where TDR was used, in which conveyance had to be restricted to the plinth and appurtenant area.
The developer argued that the Society could not receive proportionate land merely on the basis of the built-up area used for its row houses.
It also contended that conveyance of a portion of the land before completion of the entire integrated project was impermissible.
The developer relied upon earlier Bombay High Court decisions, including:
- Rai Residency Private Limited v. Competent Authority;
- Rashesh Co-operative Housing Society Limited v. State of Maharashtra; and
- Valentine Properties Private Limited v. State of Maharashtra.
It sought setting aside of the deemed conveyance order.
Respondent’s Arguments
The Society supported the Competent Authority’s order.
It submitted that the row houses had been completed and occupied since 2007, yet the developer had failed to execute the necessary conveyance.
The Society argued that the Government Resolution did not create an absolute prohibition against proportionate land conveyance merely because TDR had been used somewhere in the layout.
According to the Society, the TDR had been distributed across all buildings in the project and had not been selectively loaded onto one building.
Therefore, there was no imbalance in calculating the proportionate share of land attributable to the Society.
The Society contended that the architect had correctly calculated its share at 1.71% of the total built-up area.
Applying that percentage to the net plot area and amenity area, the Society became entitled to:
- 788.63 square metres from the net plot area; and
- 141.21 square metres from the amenity space.
It was also argued that a society of a completed building or group of row houses was not required to wait indefinitely for the completion of the entire layout before obtaining conveyance.
The State supported the order passed by the Competent Authority.
Analysis of the Law
Right of a Completed Society to Seek Conveyance
The High Court reiterated that a society representing purchasers in a completed building need not wait until the entire multi-building layout is fully developed.
A completed society can seek deemed conveyance of the land proportionately attributable to its building.
The Court referred to earlier decisions recognising that delay in completion of the remaining layout cannot indefinitely deprive existing purchasers of title to the land corresponding to their completed building.
The Government Resolution dated 22 June 2018 also permits proportionate conveyance in multi-building layouts.
Purpose of the TDR Restriction
The Court examined the purpose behind paragraph 2(C)(vi)(2) of the Government Resolution.
It explained that a problem may arise where TDR is selectively loaded onto only one of several buildings.
For example, where one building is constructed using only base FSI and another is constructed using additional TDR, dividing the land solely in proportion to the total built-up area could result in the TDR-loaded building receiving a disproportionately large share of the underlying land.
The restriction to plinth and appurtenant area was intended to prevent such an unfair distribution.
The Court held that this provision was designed as a practical or transitional solution where TDR made proportionate division difficult or impossible.
It was not intended to give developers an advantage or permit them to retain land otherwise lawfully due to societies.
No Absolute Bar Against Proportionate Conveyance
The Court rejected the developer’s argument that the use of any TDR automatically prevented proportionate conveyance.
Paragraph 2(C)(vi)(2) could not be interpreted as creating an absolute prohibition.
The proper approach was to examine whether the TDR had created an actual imbalance in calculating each building’s entitlement.
Where TDR was distributed across all buildings, the principle of proportionate conveyance could still be applied.
Only in exceptional cases where selective loading of TDR or incentive FSI made fair proportionate division impossible should conveyance temporarily be confined to the plinth and appurtenant area.
Application to the Present Layout
The architect’s certificate showed the following:
- total project land: 56,654 square metres;
- net plot area: 46,049.43 square metres;
- basic FSI built-up area: 50,654.37 square metres;
- premium FSI: 13,919 square metres;
- TDR: 24,950.45 square metres;
- ancillary FSI: 7,408.18 square metres;
- total permissible built-up area: 96,932 square metres;
- actual total built-up area of all buildings: 95,785.75 square metres; and
- built-up area of the 12 row houses: 1,640.40 square metres.
The row houses represented 1.71% of the total built-up area.
The Court found that the TDR had not been selectively loaded onto the row houses or any particular building. It had been distributed across the project.
Therefore, there was no FSI imbalance preventing proportionate land division.
The Society’s 1.71% share was accordingly applied to the relevant land and amenity areas.
Meaning of Plinth and Appurtenant Area
The Court referred to the earlier decision in Rashesh Co-operative Housing Society Limited.
It reiterated that “appurtenant area” cannot be limited to the exact structural footprint beneath columns or staircases.
It includes land reasonably necessary for the beneficial use and enjoyment of the building.
The Court also observed that the present Society consisted of 12 separate row houses rather than one conventional multi-storey building.
It would therefore be impractical to convey only the exact plinth and appurtenant area around each row house.
Developer Cannot Benefit from Non-Conveyance
The Court observed that the developer was attempting to retain land that was proportionately due to the Society.
Retention of such land could enable the developer to exploit additional future FSI or development potential arising from changes in building regulations.
The Government Resolution was intended to protect purchasers, not to allow developers to withhold proportionate land by merely using some TDR in the project.
Under no circumstances should non-conveyance of proportionate land operate to the developer’s advantage.
Supervisory Jurisdiction Under Article 227
The High Court noted that its jurisdiction under Article 227 is supervisory and limited.
It does not act as a first appellate court or interfere with every legal or factual error.
Interference is warranted only in cases involving grave jurisdictional error, perversity, violation of fundamental legal principles or miscarriage of justice.
Since the Competent Authority had reached a fair and lawful outcome, no interference was required.
Precedent Analysis
Lok Housing and Construction Limited v. State of Maharashtra
This decision recognised that a society in respect of a completed building need not wait for completion of the entire layout before seeking conveyance.
The High Court relied upon this principle to reject the developer’s argument that conveyance could not be granted until the integrated project was fully completed.
ACME Enterprises v. Deputy Registrar, Co-operative Societies
The judgment supported the principle of proportionate conveyance in favour of societies representing completed buildings within a larger layout.
It reinforced the statutory objective of protecting flat purchasers from indefinite delay by developers.
Upvan Woodlands Co-operative Housing Society Limited v. Upvan Developers
This decision also recognised the right of a completed society to receive proportionate land without awaiting completion of the entire project.
Rai Residency Private Limited v. Competent Authority
The developer relied on this decision to argue that only plinth and appurtenant area could be conveyed where TDR was used.
The Court distinguished the case.
Rai Residency involved a remand because the Competent Authority had failed to follow the required measurement procedure through an approved architect.
It did not lay down an absolute rule that proportionate conveyance was prohibited in every layout involving TDR.
Rashesh Co-operative Housing Society Limited v. State of Maharashtra
This judgment dealt with the scope of “plinth and appurtenant area.”
It held that a developer could not convey only the footprint below a building while retaining all surrounding open areas necessary for beneficial enjoyment.
The Court noted that Rashesh did not decide the precise question arising in the present case, namely, whether proportionate conveyance was permissible where TDR was distributed across all buildings.
Valentine Properties Private Limited v. State of Maharashtra
In that case, the Court directed measurement of the plinth and appurtenant area through a panel architect based on the particular facts.
It did not establish a universal prohibition against proportionate land conveyance where TDR was used.
Garment Craft v. Prakash Chand Goel
The Supreme Court explained the limited nature of Article 227 jurisdiction.
A High Court exercising supervisory jurisdiction cannot reappreciate evidence or correct every error where the final conclusion remains justified.
The Bombay High Court applied this principle and declined to interfere with the Competent Authority’s order.
Court’s Reasoning
The Court held that the first endeavour of the Competent Authority should ordinarily be to divide and convey land proportionately according to the built-up area used by each building or society.
The mere presence of TDR in the project does not automatically make proportionate division impossible.
The purpose of restricting conveyance to plinth and appurtenant area is to avoid unfairness where TDR is selectively used for only some buildings and thereby creates an imbalance.
In the present case, the TDR had been spread across all buildings in the layout.
There was therefore no reason to deny the Society its proportionate share of land.
The architect’s calculation assigning a 1.71% share to the row house Society was found to be rational and supported by the approved project data.
The Court also found that the Society had received only the land lawfully attributable to it.
No prejudice was caused to the remaining buildings or societies in the layout.
The developer’s interpretation would have allowed it to retain land and possibly exploit additional development potential in the future.
Such an interpretation would defeat the purpose of the Maharashtra Ownership Flats Act and the Government Resolution.
The Court therefore upheld the deemed conveyance of 929.84 square metres.
Conclusion
The Bombay High Court dismissed the writ petition filed by Neelkanth Mansions & Infrastructure Private Limited.
It upheld the Competent Authority’s order granting unilateral deemed conveyance of 929.84 square metres in favour of Neelkanth Greens Row House Co-operative Housing Society Limited.
The Court held that use of TDR does not automatically restrict conveyance to only the plinth and appurtenant area.
Where TDR is distributed across all buildings and does not create any imbalance, proportionate land conveyance based on the utilised built-up area must be followed.
The Court clarified that restriction to plinth and appurtenant area should be adopted only in rare cases where fair proportionate division is genuinely impossible.
No order as to costs was passed.
Case: Neelkanth Mansions & Infrastructure Private Limited v. District Deputy Registrar, Co-operative Societies, Thane & Others
Court: High Court of Judicature at Bombay, Civil Appellate Jurisdiction
Case Number: Writ Petition No. 3530 of 2026
Judge: Justice Sandeep V. Marne
Date: 25 June 2026
Result: Developer’s writ petition dismissed; deemed conveyance of 929.84 square metres in favour of the row house Society upheld.
