Court Dismisses Developer's Challenge, Affirms Society's Right to Proportionate Land in TDR Utilized Layout
In a significant ruling, the Bombay High Court has upheld the principle of proportionate land division among cooperative housing societies even when Transfer of Development Rights (TDR) is utilized across all buildings in a layout. The judgment was delivered by Justice Sandeep V. Marne in the case of Neelkanth Mansions & Infrastructure Private Limited versus the District Deputy Registrar, Co-operative Societies, Thane.
The petitioner, Neelkanth Mansions & Infrastructure Private Limited, a developer of the 'Neelkanth Greens' project in Thane, challenged an order by the District Deputy Registrar that granted deemed conveyance of land measuring 929.84 square meters to a cooperative society of row house owners. The developer argued that the conveyance should be limited to the plinth and appurtenant areas due to the utilization of TDR, as per the Government Resolution (GR) dated June 22, 2018.
The court examined the GR provisions, which generally restrict conveyance to plinth and appurtenant areas when TDR is used, but noted that this should not be applied mechanically in every case. Justice Marne emphasized that the objective of the GR is to prevent disproportionate land division and ensure fair conveyance in layouts where TDR is used across multiple buildings.
The court found that in the present case, TDR had been distributed across all buildings in the layout, and thus, the principle of land division proportionate to the built-up area was applicable. The court dismissed the developer's petition, affirming the Competent Authority's decision to grant proportionate conveyance of land to the society.
This judgment reinforces the rights of cooperative societies to receive fair conveyance of land based on their utilized built-up area, even in complex scenarios involving TDR. It also serves as a reminder to developers that the intent of regulatory provisions is to ensure equitable treatment of flat purchasers and not to provide undue advantage to developers through restrictive interpretations.
Bottom line:-
The principle of proportionate land division among societies in a layout can be applied even when Transfer of Development Rights (TDR) is utilized across all buildings in the layout. The procedure under para-2(C)(vi)(2) of the GR dated 22 June 2018, which restricts conveyance to plinth and appurtenant area, is a transitional solution and should not be mechanically applied to deny land proportionate to the built-up area (BUA) utilized by societies.
Statutory provision(s): Maharashtra Ownership Flats Act (MOFA) Section 11(3), Article 227 of the Constitution of India, GR dated June 22, 2018, para-2(C)(vi)(2).
