Mumbai: Flat purchasers and original tenants in redevelopment projects often struggle to secure title to land after construction in layouts with multiple buildings, Bombay HC has observed. Setting guidelines for deemed conveyance in such projects for the first time, it held that the land must be divided proportionately among societies.In a 170-page judgment delivered on Wednesday, Justice Sandeep Marne said each society’s proportionate land entitlement would be “crystallised” at the end of four months from the formation of the cooperative housing society. It directed that this entitlement “shall not get reduced merely because development plans get revised later”. The only exception would be where flat purchasers of earlier buildings give written consent to a revised plan.The court also directed builders to give adequate notice to flat purchasers when using transferable development rights (TDR), including disclosing the potential risk that the society may secure less land than what might be assumed from the built-up area of the building.The ruling arose from a group of three petitions filed by societies disputing the land area conveyed to them. The court noted that “difficulties in land division among the societies of multiple buildings in a layout still persist”, and described the sharing process as a “hotbed of controversy”, especially where developers attempt to exploit development potential through mechanisms such as loading TDR.Justice Marne observed that some builders treat the land as their own “for eternity” to retain future development potential and often assert that buyers have purchased only the structure, not land rights. However, Maharashtra Ownership Flats Act (MOFA) requires builders to facilitate formation of a society and convey land and title within prescribed timelines. If the builder fails, the mechanism of deemed conveyance allows the society to obtain rights without the builder’s cooperation, a provision introduced to address avoidance of conveyance by builders, HC said.The court also noted the growing preference for gated communities and integrated residential complexes, which can provide better amenities and infrastructure, but said such development suffers when developers do not adhere to disclosed plans and do not convey land to each housing society.During the hearing, the court took assistance from advocate general Milind Sathe and amicus curiae senior counsel Pravin Samdani, Girish Godbole and Naushad Engineer, along with counsel Mayur Khandeparkar and Karl Tamboly. Sathe submitted that buyers in buildings constructed using only TDR should be informed accordingly and cannot claim parity with societies in earlier buildings constructed using the original development potential of the land.HC said complications arising from different FSI applicability across buildings or the use of incentive FSI and TDR can be addressed by treating societies as falling into two categories: those constructed based on “originally sanctioned plans” and those constructed on revised plans using TDR. It held that a developer’s act of revising plans in a manner that “eats away” FSI meant for earlier buildings cannot be used to justify equating both categories for determining proportionate land share.
