In a landmark boost for flat buyers awaiting legal ownership, the Bombay High Court has ruled that builders cannot exploit Transferable Development Rights (TDR) to deny housing societies their rightful proportionate share of land during deemed conveyance.
Justice Sandeep V. Marne dismissed the petition filed by developer Neelkanth Mansions & Infrastructure Private Limited, fully upholding the unilateral deemed conveyance of 929.84 square metres granted to the Neelkanth Greens Row House Co-operative Housing Society in Majiwada, Thane.
The society of 12 row houses, which received its Occupancy Certificate in 2007, forms part of the larger integrated project Neelkanth Greens spanning over 56,654 sq.mtrs with multiple buildings. The society had applied under Section 11(3) of MOFA after years of waiting and was awarded proportionate land (788.63 sq.mtrs plot area + 141.21 sq.mtrs recreational ground) by the District Deputy Registrar, Thane.
What the 2018 Government Resolution Actually Said
The dispute centred on the Government Resolution dated 22 June 2018, which guides deemed conveyance procedures.
In normal multi-building layouts, the GR allows proportionate land division based on each society’s built-up area share, including open spaces and amenities. However, one specific clause states that in layouts where TDR is utilised, conveyance should be limited to plinth and appurtenant area.
Builder’s Attempt to Misuse the Rule — and How the Court Stopped It
The developer had used a massive 24,950.45 sq.mtrs of TDR across the entire layout. They argued that this triggered the restrictive clause, so the society should get only the small plinth + appurtenant area — not the proportionate share already granted.
The clear motive, the court noted, was to retain ownership of extra land for potential future profits from additional FSI or development rights.
Justice Marne rejected this interpretation sharply. The court clarified that the TDR clause in the 2018 GR is not an absolute prohibition but only a temporary/transitional measure. It was designed to prevent unfair imbalance when TDR is loaded selectively on certain buildings.
In this project, TDR was distributed uniformly across the layout as part of overall sanctioned planning. There was no selective loading causing imbalance. Therefore, the society was entitled to its fair 1.71% proportionate share based on built-up area.
The judgment emphasised that the GR provision exists to protect homebuyers, not to give developers a tool to hold back land indefinitely.
Key Takeaways for Homebuyers and Societies Still Awaiting Conveyance
- Societies in large phased or integrated townships can demand proportionate land even if TDR has been used in the project.
- Builders cannot mechanically cite the 2018 GR’s TDR clause to limit conveyance to just the building footprint.
- Early-completed phases do not need to wait for the entire project to finish before seeking deemed conveyance.
- For row house or similar societies, proportionate land is not only fair but often the only practical solution.
- Competent Authorities should prioritise proportionate division wherever possible and not allow the rule to benefit developers.
This order strengthens the hands of thousands of flat buyers across Maharashtra who are battling developers for full legal ownership of land and buildings through the deemed conveyance route under MOFA. It reinforces that homebuyers’ rights cannot be sidelined by technical loopholes.
