The Bombay High Court has clarified a critical principle in real estate development: when multiple buildings are constructed on a single plot under a unified layout, deemed conveyance under MOFA must allocate land based on proportionate built-up area relative to the sanctioned Floor Space Index, not the total plot size. This decision resolves long-standing ambiguity in how developers and housing societies must divide land rights when projects are phased.
Background & Facts
The Dispute
The petitioner, M/S Mahanagar Realty, developed a residential complex on a 22,609 sq. m. plot in Pune, comprising four wings: A, B, C, and D. Wings A and B were grouped as Ganga Ishanya ‘AB’, Wing C as Ganga Ishanya ‘C’, and Wing D as Ganga Nakshatra. Construction of Wings AB and C was completed, while Wing D remained under construction. Respondent housing societies sought unilateral deemed conveyance of the entire plot under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA).
Procedural History
- 2011: Original sanctioned plan approved by Pune Municipal Corporation, including all four wings.
- 2013 - 2018: Flat purchase agreements executed with buyers of Wings A, B, and C, referencing evolving sanctioned plans.
- 2018 - 2021: Occupancy certificates issued for Wings AB and C.
- 2022: Petitioner revised sanctioned plan to increase Wing D’s height from ground+1 to ground+32, significantly increasing TDR utilization.
- November 2023: Competent Authority granted deemed conveyance of 11,890.53 sq. m. to Respondent No. 1 (Wings AB) and 4,174.39 sq. m. to Respondent No. 2 (Wing C), based on the 2018 sanctioned plan.
- October 2024: Petitioner filed writ petition challenging the order.
Relief Sought
The petitioner sought to set aside the deemed conveyance order, arguing that the allocation exceeded the proportionate share of completed wings and deprived it of land necessary to complete Wing D. It contended that conveyance should await completion of the entire layout and that the authority erred by not requiring an architect’s certificate.
The Legal Issue
The central question was whether Section 11 of MOFA permits deemed conveyance of land to completed housing societies based on proportionate built-up area relative to the sanctioned FSI at the time of application, even when other wings in the same layout remain under construction.
Arguments Presented
For the Petitioner
The petitioner argued that the competent authority erred by granting conveyance without an architect’s certificate on record, violating procedural fairness. It relied on the Government Resolution of 22nd June, 2018, which permits conveyance based on plinth area or ground coverage, but insisted that only an architect’s certified calculation could determine entitlement. It further contended that the 2025 MOFA Amendment Act, with retrospective effect from 2016, rendered the impugned order invalid, as it required conveyance only after completion of the last building. The petitioner also argued that the allocation of over 16,000 sq. m. to completed wings left insufficient land to construct Wing D as per the revised sanctioned plan.
For the Respondent
The respondents countered that the sanctioned plan of 2nd November, 2018, was duly on record and provided sufficient basis for mathematical calculation of proportionate land share. They emphasized that the competent authority correctly applied the Government Resolution by using total permissible FSI (38,978.49 sq. m.) and the built-up area of completed wings to compute the land share. They argued that the petitioner’s revised plan, which increased TDR for Wing D, was not disclosed to flat purchasers of Wings AB and C, and that the contractual clause in later agreements requiring conveyance only after full project completion was void under Rule 9 of MOFA Rules, as held in Lok Housing & Construction Ltd v. State of Maharashtra.
The Court's Analysis
The Court examined the statutory framework under Section 11 of MOFA and the Government Resolution of 22nd June, 2018, which explicitly permits deemed conveyance of land to completed buildings in proportion to their built-up area, even if other buildings remain incomplete. The Court rejected the petitioner’s insistence on an architect’s certificate, noting that the sanctioned plan of 2018, which included detailed built-up area calculations for all wings, was sufficient for mathematical computation. The Court observed:
"The constructed BUA of Wings A & B is 23469.34 square meters and of Wing C is 8239.34 square meters. The total plot area is 19748.01 square meters as per sanctioned plan and the total permissible FSI was 38978.49. [...] It was matter of simple mathematical calculation."
The Court further clarified that the petitioner’s attempt to claim future TDR benefits for Wing D could not override the rights of flat purchasers in completed wings. It held that the FSI as of the 2018 plan must be frozen for the purpose of conveyance to prevent developers from diluting the land entitlement of earlier buyers by later increasing density. The Court distinguished Velentine Properties and Acme Enterprises, noting that those cases involved different factual matrices and were not binding on the statutory interpretation under Section 11.
Regarding the 2025 Amendment Act, the Court held that Section 5 of the Amendment Act, which saves all orders passed before its commencement, applied squarely. Since the impugned order was passed on 17th November, 2023, it was validly governed by the law in force at that time.
The Verdict
The petitioner’s writ petition was dismissed. The Court upheld the competent authority’s order, holding that deemed conveyance under MOFA must be calculated proportionately based on the sanctioned FSI and built-up area of completed wings, irrespective of ongoing construction. The allocation of 11,890.53 sq. m. to Wings AB and 4,174.39 sq. m. to Wing C was legally sound.
What This Means For Similar Cases
Proportionate FSI Determines Land Allocation
- Practitioners must now calculate land entitlement under MOFA using the formula: (Built-up area of completed wing / Total permissible FSI) × Net plot area.
- Developers cannot claim land for future wings until the FSI for completed wings is frozen at the time of conveyance application.
- Any attempt to revise FSI after flat purchases to benefit future construction may be deemed prejudicial to existing buyers.
Architect’s Certificate Not Mandatory for Calculation
- Sanctioned plans certified by municipal authorities are sufficient to determine built-up area for conveyance purposes.
- Petitioners cannot delay conveyance by demanding additional documentation not required under the Government Resolution.
- Courts will not permit procedural overreach where statutory parameters are clear and mathematically determinable.
Contractual Clauses Delaying Conveyance Are Void
- Agreements requiring conveyance only after full project completion violate Rule 9 of MOFA Rules, as established in Lok Housing.
- Such clauses are unenforceable even if signed by buyers, as they contravene statutory mandates.
- Housing societies may proceed with Section 11 applications regardless of contractual delays, provided statutory conditions are met.
