Ariisto Realtors Private Limited vs District Deputy Registrar Cooperative … on 17 July, 2026

    0
    8
    ADVERTISEMENT

    Bombay High Court

    Ariisto Realtors Private Limited vs District Deputy Registrar Cooperative … on 17 July, 2026

    Neeta Sawant                                               WP 12863 of 2025
    
    
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
                         WRIT PETITION NO.12863 OF 2025
    
    
    Ariisto Realtors Private Limited                    ...Petitioner
                         V/s.
    District Deputy Registrar, Co-operative             ...Respondents
    Societies, Mumbai and Ors.
                                    ________________
    Mr. Chetan Kapadia, Senior Advocate with Mr. Aman Kacheria, Mr.
    Bhavik Mehta and Ms. Hetal Jobanputra i/b Dhruve Liladhar & Co. for
    the Petitioner.
    Ms. Vinodini Srinivasan i/b Prakash & Co. for Respondent Nos. 2 to 5.
    Ms. Vaishali S. Nimbalkar, AGP for Respondent-State.
                                    ________________
                                     CORAM: SANDEEP V. MARNE, J.
                                     JUDGMENT RESD. ON: 9 JULY 2026
                                     JUDGMENT PRON. ON: 17 JULY 2026
    JUDGMENT:

    1) The Petition is filed by a developer who is opposing
    conveyance of the land in favour of the organization of flat purchasers
    with a view to exploit the additional FSI arising from the land due to
    change in the FSI regime.

    2) The Petitioner-Developer has filed the present Petition
    challenging the Order dated 14 July 2025 passed by the District Deputy
    Registrar, Co-operative Societies, Mumbai City (3) and Competent
    Authority (Competent Authority) granting certificate of unilateral
    PAGE NO. 1 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    SPONSORED

    deemed conveyance of the land and the building in favour of Respondent
    No.2-society. The main grievance of the Petitioner is about jurisdiction
    exercised by the Competent Authority in entertaining second
    application for deemed conveyance after rejection of the first application
    vide order dated 10 March 2025.

    3) Petitioner is a developer in whose favour Development
    Agreement dated 3 March 2010 and Supplementary Deed dated 3 March
    2010 was executed by Respondent No. 3 to 5/ their predecessors in title
    in respect of land bearing Survey No.161A/2, Hissa-4 (Part) and 4B
    (Part), Survey No.161A, Hissa No.7 (Part), 9, 10, 11 (part) and 12, CTS
    No.1520/A, Village-Vile Parle (West), S.V. Road, Mumbai-400 056. In
    pursuance of the Development Agreement, the Petitioner constructed
    building known as ‘Ariisto Cloud’ on the subject land. It appears that
    another building was already constructed by a different developer on the
    subject land in respect of which Kum Kum Apartments Cooperative
    Housing Society Limited (Kum Kum Society) is formed. It appears that
    there were some disputes between the Petitioner, landowners and Kum
    Kum Society and accordingly, a Tripartite Deed of Irrevocable Perpetual
    Lease dated 9 September 2011 was executed in favour of Respondent
    No.6, under which Respondent No.6 was permitted to use a total FSI not
    exceeding 2674.13 sq.m. and all the additional FSI was to be utilised
    solely by the Petitioner. Though the future additional FSI and TDR was
    to exclusively belong to the landowners, Petitioner was given the right to
    utilise the same by paying additional consideration @Rs.51,000/- per
    sq.m. to the landowners.

    
    
                                  PAGE NO. 2 of 32
                                    17 JULY 2026
     Neeta Sawant                                                WP 12863 of 2025
    
    
    4)             Petitioner entered into Agreements for Sale under Section 4
    

    of Maharashtra Ownership Flats (Regulation of the Promotion of
    Construction, Sale, Management And Transfer) Act, 1963
    (MOFA) with
    the flat purchasers of the building Ariisto Cloud. Petitioner completed
    the construction of the building Ariisto Cloud comprising ground plus 9
    upper floors, 12 residential flats, one commercial unit and 2 commercial
    shops. Flat purchasers of Ariisto Cloud building have formed Respondent
    No. 2 Society.

    5) Petitioner claims that additional FSI of 841.16 sq.m. was
    made available in terms of Development Control and Promotion
    Regulations, 2034 (DCPR, 2034). Petitioner claims that it has filed
    application dated 23 October 2024 with the Municipal Corporation for
    utilisation of additional FSI of 841.16 sq.m. on the subject property.
    According to the Petitioner, landowners are also members of
    Respondent No.2-society and that both have got together for the
    purpose of defeating Petitioner’s right to exploit additional FSI on
    payment of consideration agreed in the Development Agreement. After
    demanding conveyance vide letter dated 16 August 2024, Respondent
    No.2-society filed Application No. 179 of 2024 seeking unilateral deemed
    conveyance of the subject land. The Application was resisted by the
    Petitioner by filing affidavit in reply. By order dated 10 March 2025, the
    Competent Authority rejected Application No.179 of 2024 on the ground
    that the same was premature since construction of the building was
    incomplete and Petitioner was yet to consume unutilised FSI
    admeasuring 81.03 sq.m. as well its entitlement to utilise additional FSI

    PAGE NO. 3 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    by paying premium to the owner @Rs.51,000/- per sq.m. The society
    was, however, granted liberty to file a fresh application.

    6) Respondent No.2-society filed fresh Application No. 56 of
    2025 once again claiming deemed conveyance in respect of the subject
    land on the ground that the building had already received completion
    certificate and that the balance FSI was only 3.25 sq.m. Petitioner
    opposed the second application for deemed conveyance inter alia on the
    ground of res judicata. However, the Competent Authority has allowed
    the Application No. 56 of 2025 by impugned order dated 14 July 2025 and
    granting certificate of unilateral deemed conveyance of land
    admeasuring 1241.65 sq.m. from the larger Plot bearing CTS No. 1520/A
    alongwith the building standing thereon. The Petitioner is aggrieved by
    order dated 14 July 2025 and has accordingly filed the present Petition.

    7) Mr. Kapadia, the learned Senior Advocate appearing for the
    Petitioner, submits that the impugned order dated 14 July 2025 passed
    by the Competent Authority is without jurisdiction. That the Competent
    Authority has exercised the power of review while passing the impugned
    order, which it does not have. That the Competent Authority has
    virtually modified its findings about the exact unconsumed FSI,
    incomplete construction of building and Petitioner’s right to utilise
    future additional FSI while passing the impugned order. He submits that
    the second application for deemed conveyance was not maintainable as
    the eventualities for exercising the liberty granted in the order dated 10
    March 2025 were yet to occur. That the liberty was exercisable only after

    PAGE NO. 4 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    Petitioner utilised the balance unconsumed FSI and future additional
    FSI. That, however, society filed second application for deemed
    conveyance within 3 months of rejection of the first application. Mr.
    Kapadia further submits that the issue involved in the petition is
    squarely covered by judgment of the Apex Court in Faime Makers Pvt.
    Ltd. vs. District Deputy Registrar, Co-operative Societies
    (3), Mumbai 1
    wherein in similar circumstances, this Court set aside order passed by
    the competent authority entertaining second application by exercising
    power of review after rejection of the first application. He also relies on
    judgment of this Court in B.K. Corporation vs. State of Maharashtra
    and Ors.2 In
    support of his contention that power of review is not an
    inherent power of the Court and that quasi-judicial authorities can
    exercise only those powers which are expressly conferred on them by the
    statute, he relies on judgment of the Apex Court in State of West Bengal
    and Ors. Vs. Jai Hind Pvt. Ltd.3

    8) Mr. Kapadia further submits that the Competent Authority
    has erroneously relied on the so-called consent terms dated 16 June 2025
    executed between Respondent No.2-society and Respondent Nos.3 to 5.
    That the consent terms are shown to have been executed in Application
    No.179 of 2024, which was already disposed of on 10 March 2025. That
    thus, the alleged consent terms are shown to have been executed in
    disposed of proceedings. He submits that Respondent Nos.3 to 5 have
    now joined hands with Respondent No.2-society for the purpose of
    escaping the obligations arising out of the covenants of the
    1
    (2025) 5 SCC 772
    2
    Writ Petition No. 2453 of 2018 decided on 9 June 2026
    3
    (2026) 5 SCC 481
    PAGE NO. 5 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    Development Agreement. That the landowners are avoiding contractual
    obligations by enforcing conveyance in favour of the society acting in
    their capacity as members.

    9) Mr. Kapadia further submits that Petitioner did not receive
    notice of second Application No.56 of 2025, which is decided without
    grant of opportunity of hearing to the Petitioner. That since the order
    passed is in gross violation of principles of natural justice, the impugned
    order deserves to be set aside. Mr. Kapadia, therefore, prays for setting
    aside the impugned order dated 14 July 2025 passed by the Competent
    Authority.

    10) Ms. Vinodini Srinivasan, the learned counsel appearing for
    Respondent Nos.2 to 5, opposes the Petition. She submits that the
    Petitioner was duly served with the notice of Application No.56 of 2025.
    That there are records of postal acknowledgement and published notices
    on the file of the Competent Authority. She further submits that the
    second application for deemed conveyance (Application No. 56 of 2025)
    was filed in terms of liberty granted vide order dated 10 March 2025.
    That the entire construction of the building is complete as per the
    sanctioned plans. That building completion certificate has been issued
    by the Municipal Corporation on 23 February 2015. That the Competent
    Authority had granted liberty to file fresh application after completion of
    construction. That the liberty did not mean that the fresh application
    was to be filed after consumption of additional FSI by the Petitioner. She
    invites my attention to Clause 23.3 of MOFA Agreement, under which
    the Petitioner agreed to convey the land and the building upon sale of all
    PAGE NO. 6 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    flats in the building. That in Section 4 Agreement executed with the
    purchasers, there is no arrangement of further construction by
    utilisation of future additional FSI. That the so-called arrangement with
    the landowners in the Development Agreement does not bind the flat
    purchasers of the society. That in any case, Petitioner has not paid the
    agreed amount to the landowners nor has exercised the option of
    utilising the additional FSI. She submits that the future additional FSI
    now claimed by the Petitioner flows out of change in FSI regime and it is
    impermissible for the Petitioner to deny conveyance on the ground of
    availability of future additional FSI. She relies on judgment of this Court
    in Flagship Infrastructure Ltd. vs. The Competent Authority4 in support
    of her contention that conveyance needs to be executed within a period
    of 4 months of registration of the society as specified in Rule 9 of MOFA
    Rules and that the period specified in the agreement for sale for
    conveyance does not mean indefinite time till the developer continues to
    utilize future additional FSI.

    11) Lastly, Ms. Srinivasan submits that this Court need not
    interfere in the impugned order in exercise of extraordinary jurisdiction
    under Article 227 of the Constitution of India. She submits that setting
    aside the impugned order would revive illegal order dated 10 March
    2025. In support, she relies on judgment of the Apex Court in Gadde
    Venkateswara Rao vs. Government of Andhra Pradesh and Ors.
    5 and
    Maharaja Chintamani Saran Nath Shahdeo vs. State of Bihar and Ors. 6
    Ms. Srinivasan prays for dismissal of the Petition.

    4

    Writ Petition No.151 of 2019 decided on 15 April 2025
    5
    1965 SCC Online SC 25
    6
    (1999) 8 SCC 16
    PAGE NO. 7 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    12) I have also heard Ms. Nimbalkar, the learned AGP appearing
    for the State.

    13) Rival contentions urged on behalf of the parties now fall for
    my consideration.

    14) The main point urged by the Petitioner for challenging the
    impugned order of deemed conveyance dated 14 July 2025 is about the
    jurisdiction of the Competent Authority in entertaining second
    application for deemed conveyance after rejection of the first application
    vide order dated 10 March 2025.

    15) In the present case, Respondent No. 2-society had filed
    Application No.179 of 2024 seeking conveyance of the land and the
    building under Section 11(3) of MOFA. The Application was opposed by
    the Petitioner contending inter alia that it is yet to exploit the
    development potential in the land. Accepting the objection raised by the
    Petitioner, the Competent Authority rejected Application No.179 of 2024
    holding the same to be premature by its order dated 10 March 2025. The
    Competent Authority held that the construction of the existing building
    is incomplete in respect of the ground and the first floors. It was held
    that the Petitioner is yet to exploit unutilised FSI admeasuring 81.03
    sq.m. Thirdly, it was held that Petitioner is entitled to utilise additional
    FSI by paying premium to the owner @Rs.51,000/- per sq.m. The society
    was, however, granted liberty to file a fresh application.

    
                                    PAGE NO. 8 of 32
                                      17 JULY 2026
     Neeta Sawant                                                 WP 12863 of 2025
    
    
    
    
    16)            It appears that after rejection of the Application No. 179 of
    

    2024, consent terms were arrived at between the landowners
    (Respondent Nos. 3 to 5) and Respondent No. 2-Society on 16 June 2025,
    under which the landowners expressed willingness to convey the land in
    favour of the Society. Respondent Nos. 3 to 5 apparently own flats in the
    building of the society and the Petitioner accuses collusion between the
    landowners and the society in entering into the consent terms.

    17) After the consent terms, Respondent No.2-society filed
    fresh Application No. 56 of 2025, once again claiming deemed
    conveyance in respect of the subject land on the ground that the
    building had already received completion certificate and that the balance
    FSI was only 3.25 sq.m. and not 81.03 sq.m. as claimed by the Petitioner.
    Petitioner opposed Application No. 56 of 2005 inter alia on the ground of
    res judicata. However, the Competent Authority has allowed the
    Application No. 56 of 2025 by Order dated 14 July 2025 and has granted
    certificate of unilateral deemed conveyance of land admeasuring 1241.65
    sq.m. from the larger Plot bearing CTS No. 1520/A alongwith the
    building standing thereon in favour of Respondent No. 2 society.

    18) In the light of the above position, Petitioner has challenged
    the Order dated 14 July 2025, contending that the same is without
    jurisdiction as the Competent Authority has reviewed its earlier Order
    dated 10 March 2025, which power it does not have.

    
    
    
                                    PAGE NO. 9 of 32
                                      17 JULY 2026
     Neeta Sawant                                                                WP 12863 of 2025
    
    
    19)               By now, the law is well-settled that power of review is not
    

    an inherent power and it needs to be conferred on the Court, Tribunal or
    quasi-judicial authority by a statute. It is also settled that the competent
    authority exercising quasi-judicial powers under Section 11 of MOFA
    cannot exercise power of review, which is not expressly conferred on it.
    Mr. Kapadia is right in relying on the judgment of the Apex Court in
    State of West Bengal vs. Jai Hind Pvt. Ltd. (supra), in which it has held
    in paras-41, 72 and 73 as under:

    41. It is well-settled that the power of review is not an inherent power of the
    Court. It is also equally well settled that quasi-judicial authorities can exercise
    only those powers which are expressly conferred upon them by the statute.

    Hence, the power of review, which is not inherent, must be conferred upon the
    quasi-judicial authority by means of a specific provision in the statute.
    ***

    72. At a more fundamental level, allowing a Revenue Officer to review its own
    concluded quasi-judicial order would trench upon the constitutional doctrine
    of separation of powers, which constitutes part of the basic structure of the
    Constitution. Though vested with limited adjudicatory functions, authorities
    under the WBEA Act, 1953, remain essentially members of the executive
    branch and are neither part of the judicial organ nor equipped with the
    institutional safeguards that attend judicial office, such as independence from
    executive control.

    73. The power of review is essentially a core judicial function, and conferring
    such a power upon executive authorities, absent an express legislative
    mandate, would blur the constitutionally mandated demarcation between the
    executive and the judiciary, permit the executive authorities to sit in judgment
    over their own decisions, and erode the Rule of Law by diluting finality. Any
    contrary construction would, therefore, be inconsistent with legislative intent
    and would impermissibly encroach upon the basic structure of the
    Constitution.

    20) In the context of exercise of power of review by the
    Competent Authority under Section 11 of MOFA, there is a direct
    judgment of the Apex Court in Faime Makers Pvt. Ltd. (supra), in which
    it is held that the Competent Authority cannot exercise the power of
    PAGE NO. 10 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    review. The judgment of the Apex Court in Faime Makers Pvt. Ltd. is
    followed by this Court in B.K. Corporation (supra). The ratio of both the
    judgments in discussed in latter part of the judgment.

    21) Mr. Kapadia has contended that by following settled
    position of law as enunciated in the judgment of the Apex Court in
    Faime Makers Pvt. Ltd. and of this Court in B.K. Corporation, the order
    passed by the Competent Authority on 14 July 2025 in second
    application deserves to be set aside. However, it needs to be examined
    whether the Competent Authority has exercised the power of review in
    the present case and whether the ratio of judgments in Faime Makers
    Pvt. Ltd. and B.K. Corporation can be applied to the facts of the present
    case. It is well-settled principle of law that judgment is an authority for
    what it decides and not what can be logically deduced therefrom. [SEE:

    Commissioner of Customs (Port), Chennai vs. Toyota Kirloskar Motor
    (P) Ltd.7
    and Secundrabad Club and Ors. Vs. CIT and Ors. 8]. Judgments
    are not to be read as Euclid’s theorem nor as provisions of a statute.

    Even little difference in factual situation can make a world of difference
    in conclusion in the two cases. Reference in this regard can be made to
    the judgment of the Apex Court in Union of India and Anr. vs. Major
    Bahadur Singh9
    , in which it is held in paras 9 to 12 as under:

    9. The courts should not place reliance on decisions without discussing
    as to how the factual situation fits in with the fact situation of the
    decision on which reliance is placed. Observations of the courts are
    neither to be read as Euclid’s theorems nor as provisions of the statute
    and that too taken out of their context. These observations must be read in
    7
    (2007) 5 SCC 371
    8
    2023 SCC OnLine 1004
    9
    2005 SCC OnLine SC 1669
    PAGE NO. 11 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    the context in which they appear to have been stated. Judgments of the
    courts are not to be construed as statutes. To interpret words, phrases and
    provisions of a statute, it may become necessary for judges to embark into
    lengthy discussions but the discussion is meant to explain and not to define.

    Judges interpret statutes, they do not interpret judgments. They interpret
    words of statutes; their words are not to be interpreted as statutes. In London
    Graving Dock Co. Ltd. v. Horton [1951 AC 737 : (1951) 2 All ER 1 (HL)] Lord
    MacDermott observed : (All ER p. 14 C-D)

    “The matter cannot, of course, be settled merely by treating
    the ipsissima verba of Willes, J., as though they were part of an Act of
    Parliament and applying the rules of interpretation appropriate thereto.
    This is not to detract from the great weight to be given to the language
    actually used by that most distinguished judge….”

    10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 :

    (1970) 2 WLR 1140 (HL)] Lord Reid said : (All ER p. 297g-h)

    “Lord Atkin’s speech … is not to be treated as if it were a statutory
    definition. It will require qualification in new circumstances.”

    Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 :

    (1971) 2 All ER 1267] observed : (All ER p. 1274d-e) “One must not, of course,
    construe even a reserved judgment of even Russell, L.J. as if it were an Act of
    Parliament;” and, in Herrington v. British Railways Board [(1972) 2 WLR 537 :
    (1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord Morris said : (All ER p. 761c)

    “There is always peril in treating the words of a speech or a judgment as
    though they were words in a legislative enactment, and it is to be
    remembered that judicial utterances are made in the setting of the facts
    of a particular case.”

    11. Circumstantial flexibility, one additional or different fact may make a
    world of difference between conclusions in two cases. Disposal of cases
    by blindly placing reliance on a decision is not proper.

    12. The following words of Hidayatullah, J. in the matter of applying
    precedents have become locus classicus: (Abdul Kayoom v. CIT [AIR 1962 SC
    680] , AIR p. 688, para 19)
    “19. … Each case depends on its own facts and a close similarity
    between one case and another is not enough because even a single
    significant detail may alter the entire aspect, in deciding such cases,
    one should avoid the temptation to decide cases (as said by Cardozo) by
    matching the colour of one case against the colour of another. To
    decide, therefore, on which side of the line a case falls, the broad

    PAGE NO. 12 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    resemblance to another case is not at all decisive.”

    ***
    “Precedent should be followed only so far as it marks the path of
    justice, but you must cut the dead wood and trim off the side branches,
    else you will find yourself lost in thickets and branches. My plea is to
    keep the path to justice clear of obstructions which could impede it.”

    (emphasis added)

    22) It therefore needs to be seen as to whether the facts and
    circumstances of the present case are similar to the ones involved in
    Faime Makers Pvt. Ltd. and B.K. Corporation for applying the ratio
    therein to the present case. Before proceeding further, it must be
    observed that the Competent Authority had granted liberty to
    Respondent No. 2-society to file a fresh application for deemed
    conveyance and in that sense, it is difficult to accept the proposition that
    the Competent Authority has reviewed its own order. The contention
    that the occasion for exercising the granted liberty is yet to occur is an
    argument different than the contention that the Competent Authority
    has reviewed the earlier order. The contention of absence of power of
    review can be raised only where the Competent Authority plainly rejects
    the application for deemed conveyance (without granting any liberty)
    but still entertains a successive application and grants the same. In a
    case involving rejection of earlier application with grant of liberty to file
    a fresh one after a specified eventuality, the issue of consideration would
    always be whether the occasion for exercise of the liberty has occurred or
    not. Mr. Kapadia has however contended that in Faime Makers Pvt. Ltd.
    and B.K. Corporation also, liberties were granted for filing of fresh
    applications for deemed conveyance and that the fresh applications were
    entertained and granted even before the eventuality for exercise of
    PAGE NO. 13 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    liberty was yet to occur. The argument, I must observe, proceeds on an
    admission that the judgments in Faime Makers Pvt. Ltd. and B.K.
    Corporation are rendered in the facts of those cases where the occasion
    for exercise of the granted liberty was yet to occur. It would therefore be
    necessary to consider the factual situation in both the cases.

    23) In Faime Makers Pvt. Ltd., the landowner had executed an
    Indenture of Lease in favour of respondent No.3 therein who had
    granted development rights over the leased land in favour of the
    developer. The developer constructed unauthorised building on the
    leased land without approved plans. The landowner thereafter executed
    deed of conveyance in favour of the appellant before the Apex Court who
    claimed ownership rights in the larger land including the leased land on
    which the building got constructed. The lessee (respondent No.3) filed a
    suit against the appellant and against the original landowner. The suit
    was compromised and it was agreed to divide the larger property into
    two portions. The lessee executed deed of surrender of leasehold rights
    in one portion whereas Respondent No. 3 recognised the leasehold rights
    of the lessee in respect of the balance portion. This arrangement
    changed the identity of land on which the building was constructed and
    it was unclear whether that land fell into ownership of Respondent No. 3
    or in leasehold rights of the lessee. This resulted into difficulty in
    identifying whether the lessee retained any rights in respect of the land
    on which the building was constructed. The flat purchasers formed a
    society and applied for certificate of unilateral deemed conveyance
    under Section 11 of MOFA. The application was rejected by the

    PAGE NO. 14 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    competent authority inter alia on the ground of difficulty in identifying
    the land in respect of which leasehold rights could be granted in favour
    of the society. The Competent Authority directed the parties to first
    seek appropriate relief from the competent civil court and granted
    liberty to the society to file a fresh application for deemed conveyance.
    Instead of approaching the civil court to resolve the legal complications,
    a fresh application was filed by the society before the Competent
    Authority, which was allowed, granting assignment of leasehold rights in
    the land in favour of the society. This Court upheld the order of the
    Competent Authority. It is in the light of these peculiar facts that the
    Apex Court held that the society could approach the Competent
    Authority afresh only after getting the complications sorted out before
    the appropriate court. This is a reason why the second order passed by
    the Competent Authority granting deemed conveyance was set aside by
    holding that the High Court had erred in giving a different interpretation
    to the first order of rejection.

    24) In the light of the above peculiar factual position, the Apex
    Court has held in paras 19, 21, and 23 to 27 of the judgment in Faime
    Makers Pvt. Ltd as under:

    19. Having considered these submissions and having perused the order dated
    22-2-2021, we have no hesitation to hold that there was no unconditional
    liberty granted to Respondent 2 Society to apply for the unilateral assignment
    of leasehold rights. The order dated 22-2-2021 is very clear that complications
    had arisen because of various transactions inter se parties at different points of
    time. The relevant facts have already been noted in the earlier part of this
    judgment.

    xxx

    21. A plain reading of the above findings of the competent authority in its
    PAGE NO. 15 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    order dated 22-2-2021 leaves no manner of doubt that Respondent 2 Society
    could approach the competent authority afresh for the unilateral assignment
    of leasehold rights only after getting the complications sorted out before the
    appropriate court. The order clearly indicates that the competent authority
    could not grant leasehold rights under the existing set of facts until and unless
    the complications were sorted out.

    xxx

    23. It has been settled by this Court that the principle of res judicata applies to
    and binds quasi-judicial authorities. This Court in Ujjam Bai v. State of
    U.P.
    [1962 SCC OnLine SC 8] has taken the view that principles of res judicata
    equally apply to quasi-judicial bodies. Whenever a judicial or quasi-judicial
    tribunal gives a finding on law or fact, its findings cannot be impeached
    collaterally or in a second round and are binding until reversed in appeal or
    revision or by way of writ proceedings.

    24. The characteristic attribute of a judicial act or decision is that it binds,
    whether right or wrong. Thus, any error, either of fact or law, committed by
    such bodies cannot be controverted otherwise by way of an appeal or revision
    or a writ unless the erroneous determination relates to the jurisdictional
    matter of that body.

    25. This position has been further reinforced in Abdul Kuddus v. Union of
    India
    [(2019) 6 SCC 604] which relies upon Ujjam Bai [Ujjam Bai v. State of U.P.,
    1962 SCC OnLine SC 8] . In Abdul Kuddus, this Court held that the opinion by
    the Foreigners Tribunal is a quasi-judicial order. Therefore, it would be
    incorrect to hold that the opinion of the Tribunal and/or the consequential
    order passed by the registering authority would not operate as res judicata.

    Further, it was established that any quasi-judicial authority would not
    ordinarily have the power to unilaterally take a contrary view taken by a
    coordinate or predecessor authority at an early point in time.

    26. From the foregoing discussion, it is evident that once a competent
    authority (quasi-judicial in nature) settles an issue, that determination attains
    finality unless it is set aside in accordance with law.

    27. In our opinion, the High Court erred in giving a different interpretation to
    the above text of the first order dated 22-2-2021. The High Court had extracted
    the above findings, conclusions, and directions in its impugned order [Faime
    Makers (P) Ltd. v. Registrar, Coop. Societies (3), 2023 SCC OnLine Bom 2495]
    but still moves on to hold that unconditional liberty was given to Respondent 2
    Society, which in our opinion, was not correct.

    25) In B.K. Corporation, a civil suit was filed by Noble House
    CHSL in the City Civil Court seeking conveyance of land by impleading

    PAGE NO. 16 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    the promoter, original landowners and other societies in the layout.
    During pendency of the suit, Apeksha CHSL filed first application for
    deemed conveyance, which was rejected by the Competent Authority
    holding that the same was premature. Liberty was granted to Apeksha
    CHSL to file a fresh application after decision of the civil suit. Without
    challenging the first rejection order and during pendency of the civil
    suit, Apeksha CHSL filed second application for deemed conveyance,
    which was allowed by the Competent Authority. This Court followed the
    ratio of the judgment in Faime Makers Pvt. Ltd. and held that the
    second application for deemed conveyance was not maintainable in view
    of liberty granted to file fresh application only after decision of the civil
    suit.

    26) Thus, in Faime Makers Pvt. Ltd., complications had arisen
    because of various transactions inter se between the parties at different
    points of time. Therefore, liberty was granted to file fresh application for
    deemed conveyance after getting the complications relating to
    identification of property to be conveyed sorted out from the civil court.
    In that case, consent terms resulted in exchange of land between the
    owner and the lessee, and it had become difficult to know whether lessee
    had retained any right in respect of the land on which the building was
    constructed. Therefore, liberty to file fresh application for deemed
    conveyance was granted only after getting the said complications sorted
    out from the civil court. Similarly, in B.K. Corporation, liberty to file
    fresh application was granted only after decision of pending civil suit.
    Thus, in both the cases, it was necessary that an adjudication from civil

    PAGE NO. 17 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    court was required and therefore the Competent Authority had rejected
    the first applications for deemed conveyance, granting liberty to the
    society to apply afresh after decisions of the civil court.

    27) In the present case, no adjudication by a civil court is
    necessary for the purpose of deciding the prayer for deemed conveyance
    made by the second Respondent-society. There are no disputes about
    sharing of land between Ariisto Cloud CHSL (Respondent No.2) and Kum
    Kum Apartments CHSL (Respondent No.6). There are no disputes with
    the landowners, who are more than happy to convey the subject land in
    favour of second Respondent-society. Mr. Kapadia has in fact alleged
    that the landowners are hand in gloves with the second Respondent-
    society. The only dispute is with regard to Petitioner’s alleged right to
    utilise future additional FSI by paying consideration. The landowners do
    not desire to utilise any future additional FSI and are possibly aware of
    the settled law that possibility of future additional FSI can never be a
    ground for delaying conveyance of land for eternity. Reference in this
    regard can be made to the judgment of Division Bench of this Court in
    Lakeview Developers vs. Eternia Co-operative Housing Society
    Limited10
    , in which it has held in paras-55 to 56 as under:

    55. In our view, therefore, from the aforesaid judgment, it is clear that the
    developer cannot claim that he can continuously exploit the building potential
    for eternity without conveying the land in favour of the Society. The obligation
    to convey the land in favour of the Society within a prescribed time and the
    obligation to make true and full disclosure under Clauses 3 and 4 of Form V
    remains unfettered. If the full development potential of the land is exhausted
    and the obligation for conveyance of land in favour of the Society has arisen as
    per the Act and Rules and if the developer fails to do so then any further
    benefit which would accrue to the developer on account of any additional TDR
    10
    2015 SCC Online Bom 3824
    PAGE NO. 18 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    or FSI made available, cannot be used by him for the purpose of construction
    of additional buildings. For example, recently, the Government of Maharashtra
    has announced that the FSI which would be available in the City of Greater
    Mumbai would be increased by 0.6. The benefit of this announcement cannot
    be availed by a developer who has not conveyed the property in favour of the
    Society though he was under legal obligation to do so, having fully developed
    the building potential of the land under building as per true and full disclosure
    under Section 3 and 4 of the said Act and Clauses 3 and 4 of Form V of the said
    Rules. He, therefore, cannot having failed in its obligation to convey the
    property within the time prescribed thereafter claim that full building
    potential has not been utilized and claim right to construct further buildings.

    56. In our view, from the facts and circumstances of the present case, it can be
    seen that though the developer/promoter had fully utilized the full
    FSI/potential of the land and was under an obligation to convey the property
    after construction of the 10th building on Sector IV-A, he is now trying to
    construct four other buildings by claiming additional TDR and trying to load it
    on the four additional buildings. In our view, prima facie, it can be seen that
    full development potential/FSI has already been utilized by the developer and
    its claim that additional buildings were constructed by utilizing the additional
    TDR prima facie does not appear to be correct if the layout plan produced by
    the Plaintiffs/Societies is taken into consideration.

    28) The principle is applied by this Court in Kiran Builders Pvt.
    Ltd. vs. Kalpita Enclave Co-operative Housing Society Ltd. and Ors.
    11

    29) On account of the above settled position of law, the
    landowners are no longer interested in monetising the future additional
    FSI in respect of the subject land, though the Development Agreement
    makes them entitled to receive consideration @ Rs. 51,000/- per sq.m.
    for additional FSI. On the other hand, Petitioner-developer wants to
    milk the additional FSI flowing out of introduction of DCPR, 2034. This
    is clear from the following pleadings in the Petition:

    3.10. Be that as it may, in terms of Development Control and Promotion
    Regulations, 2034, since additional FSI / TDR was available for the Petitioner
    to use, the Petitioner had categorically intimated to the Respondents their
    11
    Writ Petition No.9694 of 2017 decided on 18 June 2026
    PAGE NO. 19 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    intention to utilise such additional FSI. As per the Petitioner’s computation,
    this additional FSI that has now become available to be utilized is a substantial
    amount of 841.16 sq.mts.

    xxx

    3.12. In furtherance of its rights under the Development Agreement, read with
    the irrevocable POA and Supplementary Deed, the Petitioner filed an
    Application dated 23rd October 2024 with the Brihanmumbai Municipal
    Corporation (“BMC”), which was resubmitted by the Petitioner on 16 th June
    2025, 24th June 2025 and 9th July 2025 inter alia for utilization of the additional
    FSI / TDR of 841.16 sq. meters on the Subject Property. In order to not burden
    the record of this Hon’ble High Court, the Petitioner is not annexing the said
    applications to this Petition but craves leave to refer and rely upon the same as
    and when required.

    30) Petitioner relies on clause 12 of the Development
    Agreement dated 3 March 2010 in support of its contention of right to
    utilise future additional FSI/TDR which reads thus:

    12. The Developers shall be entitled to consume and utilize the Development
    Potential on the said Property. It is agreed that all the future additional FSI
    including TDR or any other FSI available shall exclusively belong to the
    Owners. It is further agreed that any future FSI/TDR that may become
    available after consuming and utilizing the total FSI / TDR to the extent of the
    Development Potential, shall belong exclusively to the Owners PROVIDED
    HOWEVER THAT the Developer shall at its own option be entitled to utilize
    such additional FSI/TDR available by paying an additional consideration
    computed at the rate of Rs.51,000/- (Rupees Fifty one thousand only) per
    square meter of such additional FSI/TDR to the Owners, to be divided equally.

    It is clarified that all other cost including cost of TDR to be borne by the
    Developers only.

    31) It is highly debatable as to whether clause 12 of the
    Development Agreement can create any right in favour of the Petitioner
    to utilise future additional FSI arising out of the subject land under
    Section 11(1) of MOFA read with the Agreements for Sale required to be
    executed in Form-V of the MOFA Rules. It is a statutory obligation on
    the part of the Petitioner to perfect its title in respect of the land and to
    PAGE NO. 20 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    convey its right, title and interest in the land and the building in favour
    of organisation of flat purchasers within a period of 4 months of
    formation of such organisation. Thus, everything belonging to the
    landowner and the promoter must be transferred to the organisation of
    flat purchasers. It is impermissible to retain any right in the land by the
    owner after a housing scheme is implemented on the land, the building
    is constructed by consuming the sanctioned FSI and the flats constructed
    therein are sold. With sale of each flat, the title of the landowner and the
    promoter gets diluted in the land and once all the flats in the building
    are sold, the title of the owner and the promoter in the land is divested
    and only a formal act of conveyance needs to be executed under Section
    11(1)
    of MOFA by the promoter and on its failure, by the Competent
    Authority under Section 11(3).

    32) The Respondent No.2-society is formed and registered on
    28 June 2016 and Petitioner was under statutory obligation to convey the
    land and building to the society within 4 months of 28 June 2016. The
    importance of this period of 4 months has been repeatedly highlighted
    by this Court. Reliance by Ms. Srinivasan on judgment of this Court in
    Flagship Infrastructure Ltd. (supra) in this regard is apposite, in which it
    has held in paras-34 and 35 as under:

    34. The use of the word “period” in Rule 9 of MOFA Rules is very important. In
    common understanding, a “period” means a fixed, definite block of time, like
    four months, six months, etc. It does not mean some vague or uncertain future
    event. This meaning fits the general rule in law: unless the context requires
    otherwise, words in a law must be given their natural, everyday meaning. Here,
    the word “period” is clear and plainit points to a definite timeline. The
    promoter’s argument that the conveyance can be delayed until ten years after
    completion of Towers 1 to 8, or till the entire township is done would destroy

    PAGE NO. 21 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    this certainty. It would replace a clear deadline with an uncertain, shifting
    future event. That is not allowed. Courts are not allowed to change or rewrite
    clear laws under the excuse of interpretation. If courts start allowing such
    changes, it would defeat the whole purpose for which MOFA was made to
    protect flat buyers. If the promoter’s argument is accepted, it would allow
    promoters to hold on to ownership forever, just by pointing to some
    incomplete work in the township. This would bring back the very problems
    MOFA wanted to prevent. Thus, the word “period” in Rule 9 must be
    understood as a definite, fixed time and not an open-ended condition. Any
    clause in a sale agreement (like Clauses 6.3.1 and 6.3.2) that tries to override
    this rule is void (meaning invalid) because it goes against the law.

    35. Based on the above discussion, I am firmly of the opinion that an
    agreement clause (like Clauses 6.3.1 and 6.3.2) that says the promoter can
    delay conveyance until the full project is complete goes against Rule 9 of
    MOFA. Especially when most of the flat purchasers have already taken
    possession, have formed a registered society, and have fulfilled their
    obligations, the promoter cannot hide behind private clauses to delay
    conveyance. If I accept the promoter’s argument, it would make the protection
    given to flat purchasers under MOFA meaningless, and would give complete,
    unregulated power to the promoter. That is not what the law allows. Therefore,
    the promoter was under a legal duty to execute the conveyance deed within
    four months from the date the society was registered (i.e., within four months
    from 12th September 2011). The promoter failed to do so. Thus, the
    application filed by respondent No.2-society under Section 11 of MOFA was
    legally correct.

    33) Thus, a promoter cannot indefinitely delay conveyance of
    land on the pretext of exploiting the further additional FSI arising out of
    the new FSI regime. In the present case, Petitioner is attempting to claim
    a right which never belonged to him in law. He was statutorily required
    to convey the land and building in favour of the society. He ought to
    have conveyed the land and the building within 4 months of formation
    of the society. The additional FSI arising out of DCPR-2034 introduced
    on 8 May 2018 belongs to the society. It neither belongs to the land
    owners nor Petitioner can exploit the same by paying amount to the
    landowners. Therefore, enforceability of Clause 12 of the Development
    Agreement itself is highly debatable. Be that as it may, it is not necessary
    PAGE NO. 22 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    to delve deeper into this aspect considering the limited controversy
    involved in the present Petition.

    34) Coming back to the core issue of nature of liberty granted by
    the Competent Authority in the first rejection order dated 10 March
    2025, the relevant part of the order reads thus:

    15. On perusal of the above submissions and documents submitted by the
    concerned parties, it is observed that:

    k. As per MOFA agreement the Developer will get additional FSI over and
    above 3,137.28 sq. mtrs. of by paying premium to Owner @Rs.51,000 per sq.
    mtrs. as per clause 12 of Registered Development Agreement dt. 03.03.201
    between Owner & Developer and the Developer is entitled to utilise &
    consume the unutilized FSI admeasuring 81.03 sq.mt. which is balance as
    per the Registered Development Agreement dt. 03.03.2010 at no additional
    premium to Owner. Also the work of Applicant Building specifically on
    ground floor/first floor is pending. It is only fair to grant the conveyance to
    the building after completion of the construction of the entire building of
    applicant society.

    (emphasis and underlining added)

    35) Thus, the Competent Authority essentially recorded three
    distinct reasons for rejecting the application dated 10 March 2025. The
    first reason was about developer’s right to secure additional FSI over and
    above 3137.28 sq.m. by paying premium to the owner @Rs.51,000/- per
    sq.m. This right is recognised by the Competent Authority, both under
    ‘MOFA agreement’ as well as under Clause 12 of the registered
    Development Agreement dated 3 March 2010. The second reason was
    unutilised FSI admeasuring 81.03 sq.m. as per the approved plan dated
    16 March 2012 forming part of FSI already granted as per the
    Development Agreement at no additional cost to the owner. The third
    reason was pendency of work of the building, especially on the ground
    floor and first floor.

    PAGE NO. 23 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    36) By citing the above three reasons, the Competent Authority
    rejected society’s application for deemed conveyance by holding the
    same as premature. The Competent Authority held that ‘It is only fair to
    grant the conveyance to the building after completion of the construction of
    the entire building of applicant society’.

    37) Thus, though the Competent Authority cited three reasons
    for rejection of Application, it ultimately held that conveyance could be
    granted “after completion of the construction of the entire building of
    applicant society”. This would essentially indicate that the finding of
    Application being premature is essentially married to the third ground of
    construction of the building being incomplete. If the observation of the
    Competent Authority is strictly and literally interpreted, it did not
    specifically direct that conveyance could be granted after additional
    construction was put by (i) utilising future additional FSI by paying
    Rs.51,000/- per sq.m. to the owners or (ii) existing balance FSI of 81.03
    sq. mts. It held that the conveyance could be granted “after completion of
    the construction of the entire building of applicant society”. This is one way
    of reading the Order dated 10 March 2025 and this is how Ms. Srinivasan
    reads that order. On the other hand, Mr. Kapadia reads the order dated
    10 March 2025 to mean that liberty to file fresh application for deemed
    conveyance can be exercised only after all the three eventualities
    discussed above are complete viz. (i) utilization of the future additional
    FSI of 841.16 sq.m. available under DCPR, 2034 in terms of clause 12 of
    the Development Agreement, (ii) utilization of balance FSI of 81.03 sq.m.

    
                                     PAGE NO. 24 of 32
                                       17 JULY 2026
     Neeta Sawant                                                    WP 12863 of 2025
    
    
    

    and (iii) completion of work on the ground and the first floor of the
    building.

    38) Construction of the entire building of Respondent No.2-
    society is admittedly complete and Petitioner’s architect had submitted
    building completion certificate to the Municipal Corporation on 14
    October 2012. It is fairly not argued before me by Mr. Kapadia that
    construction of the building is incomplete in any manner. He has only
    harped on Petitioner’s entitlement to put up additional construction by
    utilising FSI arising out of DCPR, 2034. He has also not seriously
    disputed the FSI computations put forth by the society indicating that
    only 3.25 sq.m. of FSI is balance as per the sanctioned plan. Otherwise
    also, perusal of the Area Statement in the sanctioned plan would
    indicate that the entire sanctioned FSI has been consumed (except built-
    up area of 3.25 sq.m.). The society therefore contends that since
    construction of the building is complete, it was entitled to exercise the
    liberty granted by the Competent Authority. As observed above, the
    observations made in para-15-k of the order dated 10 March 2025 do
    suggest that Respondent No.2 had liberty to apply afresh for deemed
    conveyance after completion of construction of the entire building. In
    my view therefore, considering the peculiar facts and circumstances of
    the present case, exercise of liberty by Respondent No.2 to file second
    application for deemed conveyance after being satisfied that
    construction of the building is complete cannot seriously be faulted.

    
    
    39)            It must be also noted that if contention of the Petitioner
    
                                   PAGE NO. 25 of 32
                                     17 JULY 2026
     Neeta Sawant                                                WP 12863 of 2025
    
    
    

    about liberty being linked to completion of additional construction by
    utilising FSI arising out of DCPR-2034 is accepted, the time for exercise
    of such liberty may never arise in the light of the fact that Petitioner is
    actually not entitled to put up additional construction by milking future
    additional FSI arising out of change of FSI regime in view of law
    repeatedly enunciated by this Court. Therefore, in the peculiar facts and
    circumstances of the present case where the liberty to file application
    was not linked to decision of any civil suit as was the case in Faime
    Makers and B.K. Corporation, exercise of liberty by Respondent No.2 in
    filing fresh application for deemed conveyance cannot really be found
    fault with.

    40) In my view therefore the case does not involve exercise of
    power of review by the Competent Authority. While passing order dated
    10 March 2025, the Competent Authority has not rejected Society’s
    application altogether. The Competent Authority had granted liberty to
    the Society to file a fresh application. The second application of deemed
    conveyance was filed by the society in terms of that liberty.

    41) One must bear in mind the objective of the Petitioner in
    opposing the conveyance of land to the housing society. Petitioner has
    already exploited the development potential in the land and has milked
    the profits out of the project. Its greed to make more profits is however
    not satisfied and it wants to put up additional construction in the land
    because the new DCPR grants additional FSI. Except the Petitioner-
    developer no other person/party is opposing the conveyance. The other
    society in the layout (Kum Kum Society) has not challenged the order.

                                   PAGE NO. 26 of 32
                                     17 JULY 2026
     Neeta Sawant                                                              WP 12863 of 2025
    
    
    

    The land owners are supporting the conveyance grated in favour of the
    society. in such circumstances, if the order of deemed conveyance is set
    aside on technicalities cited by the Petitioner, the same would result in
    indirectly permitting the Petitioner to put up additional construction in
    the project, by exploiting the additional FSI which belongs to
    Respondent No. 2-society. Can extraordinary jurisdiction of this Court
    be permitted to be used for such purposes? The answer, to mind, appears
    to be in emphatic negative. Courts have refused to set aside orders on
    technicalities when ultimate outcome of the litigation is found to be
    satisfactory. Reliance by Ms. Srinivasan on judgment of the Apex Court
    in Gadde Venkateswara Rao (supra) is apposite in this regard. The Apex
    Court has held in para-19 of the judgment as under:

    19. The result of the discussion may be stated thus : The Primary Health
    Centre was not permanently located at Dharmajigudem. The representatives of
    the said village did not comply with the necessary conditions for such location.

    The Panchayat Samithi finally cancelled its earlier resolutions which they were
    entitled to do and passed a resolution for locating the Primary Health Centre
    permanently at Lingapalem. Both the orders of the Government, namely, the
    order dated March 7, 1962, and that dated April 18, 1963, were not legally
    passed : the former, because it was made without giving notice to the
    Panchayat Samithi, and the latter, because the Government had no power
    under Section 72 of the Act to review an order made under Section 62 of the
    Act and also because it did not give notice to the representatives of
    Dharmajigudem village. In those circumstances, was it a case for the High
    Court to interfere in its discretion and quash the order of the Government
    dated April 18, 1963? If the High Court had quashed the said order, it would
    have restored an illegal order — it would have given the Health Centre to a
    village contrary to the valid resolutions passed by the Panchayat Samithi. The
    High Court, therefore, in our view, rightly refused to exercise its extraordinary
    discretionary power in the circumstances of the case.

    42) In Maharaja Chintamani Saran Nath Shahdeo (supra), the
    Apex Court has followed the ratio of the judgment in Gadde

    PAGE NO. 27 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    Venkateswara Rao and in Mohd. Swalleh vs. IIIrd ADJ12 and has held
    that the order of the authority, who had no power to issue direction for
    giving notice for refund of excess amount, need not be set aside once it
    was found that the appellant therein was legally paid excess
    compensation under the Act. The Apex Court held in paras-12 to 15 of
    the judgment as under:

    12. Therefore, the question is whether the order of the Member of Board of
    Revenue should be quashed on this ground. If the order is set aside, the result
    would be that the notice directing the appellant to refund the additional
    amount of compensation assessed at ten times of the net income would have
    to be quashed. In other words, the earlier reassessment of compensation made
    by giving ten times of the net income would revive. If under the law the
    appellant is not entitled to get compensation more than three times of the net
    income it would amount to restoring an illegal order.

    13. In Gadde Venkateswara Rao v. Govt. of A.P. [AIR 1966 SC 828] this Court
    considered the action of the State Government under the Andhra Pradesh
    Panchayats Samithis and Zilla Parishads Act, 1959 and came to the conclusion
    that the Government had no power under Section 72 of the Act to review an
    order made under Section 62 of the Act but refused to interfere with the orders
    of the High Court on the ground that if the High Court had quashed the said
    order, it would have restored an illegal order and, therefore, the High Court
    rightly refused to exercise its extraordinary jurisdictional power.

    14. In Mohd. Swalleh v. IIIrd ADJ [(1988) 1 SCC 40] similar view was also
    expressed by this Court. In that case the order passed by the prescribed
    authority under the U.P. (Temporary) Control of Rent and Eviction Act, 1947
    was set aside by the District Judge in appeal though the appeal did not lie. The
    High Court came to the finding that the order of the prescribed authority was
    invalid and improper but the District Judge had no power to sit in appeal. The
    High Court did not interfere with the orders of the District Judge. The order of
    the High Court was affirmed by this Court on the ground that though
    technically the appellant had a point regarding the jurisdiction of the District
    Judge but the order of the prescribed authority itself being bad, no exception
    can be taken against the refusal of the High Court to exercise powers under
    Article 226.

    15. Therefore, in view of the above ratio laid down by this Court, we hold
    that even if the Member of Board of Revenue had no power to issue
    direction for giving notice for refund of the excess amount paid, no
    12
    (1988) 1 SCC 40
    PAGE NO. 28 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    exception can be taken to the said order if it is found that legally the
    appellant was paid excess compensation under the Act.

    (emphasis added)

    43) Petitioner has invoked jurisdiction of this Court under
    Article 227 of Constitution of India, which is both supervisory and
    corrective in nature. The jurisdiction need not be exercised to correct
    every error of law or fact when the final finding is found to be justified or
    can be supported. In this regard, reference can be made to the judgment
    of Apex Court in Garment Craft v. Prakash Chand Goel13 in which it has
    held in para 15 as under:

    15. Having heard the counsel for the parties, we are clearly of the view that the
    impugned order [Prakash Chand Goel v. Garment Craft, 2019 SCC OnLine Del
    11943] is contrary to law and cannot be sustained for several reasons, but
    primarily for deviation from the limited jurisdiction exercised by the High
    Court under Article 227 of the Constitution of India. The High Court exercising
    supervisory jurisdiction does not act as a court of first appeal to reappreciate,
    reweigh the evidence or facts upon which the determination under challenge is
    based. Supervisory jurisdiction is not to correct every error of fact or even a
    legal flaw when the final finding is justified or can be supported. The High
    Court is not to substitute its own decision on facts and conclusion, for that of
    the inferior court or tribunal.
    [Celina Coelho Pereira v. Ulhas Mahabaleshwar
    Kholkar
    , (2010) 1 SCC 217] The jurisdiction exercised is in the nature of
    correctional jurisdiction to set right grave dereliction of duty or flagrant abuse,
    violation of fundamental principles of law or justice. The power under Article
    227
    is exercised sparingly in appropriate cases, like when there is no evidence
    at all to justify, or the finding is so perverse that no reasonable person can
    possibly come to such a conclusion that the court or tribunal has come to. It is
    axiomatic that such discretionary relief must be exercised to ensure there is no
    miscarriage of justice.

    44) Similarly, Chief Justice M.C. Chagla of this Court speaking
    for the Division Bench in State of Bombay vs. Morarji Cooverji 14 has
    held in para 42 and 44 as under:

    13

    (2022) 4 SCC 181
    14
    1958 SCC OnLine Bom 188
    PAGE NO. 29 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    42. … This is, on the contrary, a case where the premises requisitioned for a
    public purpose are occupied by a Government servant and are sought to be
    taken possession of by the landlord by asking the Court to throw the
    Government servant out and restore possession to the landlord when that
    landlord has never shown its need of those premises by occupying them
    himself. Therefore, this is clearly a case where justice is not on the side of
    the petitioner, it is on the side of the State, and we see no reason why we
    should grant any relief to the petitioner.

    ***

    44. With respect to the learned Judge, the matter is much more serious than
    merely the question of this particular vacancy of 1956 not being relevant to the
    vacancy which is the subject-matter of the requisition order. On a writ
    petition, as we have already said, the petitioner has not merely to show
    good faith, but he has not to suppress any facts and has also to show that
    justice lies on its side. If the learned Judge had taken these circumstances
    into consideration and then had come to the conclusion that the discretion
    should be exercised in favour of the landlord, then undoubtedly we would not
    have interfered with the order passed by the learned Judge.

    (emphasis added)

    45) Thus, while invoking extraordinary jurisdiction of this Court
    under Article 227 of Constitution of India, it is necessary for the
    petitioner to demonstrate that the justice is on its side. In a case where
    this Court notices that justice is not on the side of the petitioner, it
    would not interfere in the order merely on technical reasons. The High
    Court always can decline grant of relief where petitioner seeks to invoke
    extraordinary jurisdiction to secure undue benefit. The law in this regard
    is expounded by three judge Bench of the Apex Court in MP Mittal vs.
    State of Haryana15 in which it has held in para 5 as under:

    5. Now there is no dispute that the appellant knowingly and deliberately
    entered into the guarantee agreement and is liable as guarantor to make
    payment of the dividend due from Messrs Depro Foods Limited. Nor is it
    disputed that the amount due, with interest, stands at Rs 2,02,166–in
    respect of the period ending with the year 1977. It was not contended
    that the appellant in fact does not possess sufficient funds or cannot
    15
    (1984) 4 SCC 371
    PAGE NO. 30 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    avail of sufficient personal property for the purpose of discharging the
    liability. The record also shows that before instituting coercive
    proceedings, the Assistant Collector provided the appellant an
    opportunity to pay up the amount due from him and that the appellant
    made no attempt to discharge the liability. When that is so, we are of
    opinion that he is not entitled to relief in these proceedings. The
    appeal arises out of a writ petition and it is well-settled that when
    a petitioner invokes the jurisdiction of the High Court under
    Article 226 of the Constitution, it is open to the High Court to
    consider whether, in the exercise of its undoubted discretionary
    jurisdiction, it should decline relief to such petitioner if the grant
    of relief would defeat the interests of justice. The court always has
    power to refuse relief where the petitioner seeks to invoke its writ
    jurisdiction in order to secure a dishonest advantage or perpetuate
    an unjust gain. This is a case where the High Court was fully justified in
    refusing relief. On that ground alone, the appeal must fail.

    (emphasis added)

    46) The objective of the Petitioner behind opposing conveyance
    must also be appreciated. In the present case, filing of present Petition is
    aimed by Petitioner-developer at milking future additional FSI arising
    out of change of FSI regime (DCPR 2034). Petitioner has constructed the
    society’s building by consuming the entire available FSI granted at the
    time of sanction of plans. Merely because DCPR 2034 are introduced in
    2018, Petitioner believes that it can put additional construction
    admeasuring 841.16 sq.m. on the land and with that objective, Petitioner
    is denying conveyance of land to the society. This way, no developer
    would ever convey land to the organisation of flat purchasers and would
    continue to take benefit of further additional FSI made available due to
    change in FSI regime. Fortunately, in the present case, the landowners to
    whom the FSI belongs as per clause 12 of the Development Agreement,
    fairly do not want to utilise the same. It is only the promoter who is
    attempting to earn a fortune by taking benefit of its own wrong, who is
    PAGE NO. 31 of 32
    17 JULY 2026
    Neeta Sawant WP 12863 of 2025

    interested in putting up additional construction on subject land. This
    Court would not be a party to such devious acts of the Petitioner of
    monetising something which belongs to society. If additional FSI flows
    out of DCPR 2034, the same would belong to Respondent No.2-Society
    and not to the Petitioner. Therefore, this Court would refuse to permit
    its extraordinary jurisdiction being misused by the Petitioner for
    achieving its insatiable objective of endlessly milking the development
    potential in the land for eternity. Section 11 of MOFA is aimed at curbing
    this tendency on the part of the developers.

    47) In the light of the above discussion, this Court is not
    inclined to exercise its extraordinary jurisdiction to grant any relief in
    favour of the Petitioner.

    48) Writ Petition is accordingly dismissed with no order as to
    costs.

    
    
    
    
                                                                             [SANDEEP V. MARNE, J.]
    
    
    
             Digitally
             signed by
             NEETA
    NEETA    SHAILESH
    SHAILESH SAWANT
    SAWANT   Date:
             2026.07.17
             18:16:32
             +0530
    
    
    
    
                                                         PAGE NO. 32 of 32
                                                           17 JULY 2026
     



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here