Bombay High Court
Salsette Catholic Co-Operative ... vs Municipal Corporation For Greater ... on 22 August, 2025
2025:BHC-OS:14009-DB
Ajit Pathrikar WP-2052-2009-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2052 OF 2009
WITH
NOTICE OF MOTION NO. 200 OF 2010
Salsette Catholic Co-operative Housing Society Ltd. ....Petitioner
: Versus :
Municipal Corporation of Greater Mumbai & Ors. ....Respondents
ALONGWITH
CONTEMPT PETITION NO. 85 OF 2012
WITH
INTERIM APPLICATION (L) NO. 35451 OF 2024
(FOR AMENDMENT)
The Salsette Catholic Co-operative Housing
Society Ltd. ....Petitioner
: Versus :
Maria Anne De Penha & Ors. ....Respondents
Mr. G. S. Hegde, Senior Advocate with Mr. Clive D'souza, for the
Petitioner.
Ms. Oorja Dhond i/b Ms. Komal R. Punjabi, for MCGM, Respondent No. 1.
Mr. G. S. Godbole, Senior Advocate i/b Ms. Shruti Tulpule, for
Respondent No. 7 in Contempt Petition No. 85 of 2012
Mr. Rumi Mirza with Mr. Kaushal Thakker i/b Ms. Neha Bhide, for
Respondent No.6.
Page No.1 of 14
22 August 2025
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Ajit Pathrikar WP-2052-2009-FC
CORAM : ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Reserved on : 14 AUGUST 2025
Pronounced on : 22 AUGUST 2025
JUDGMENT:(Per Sandeep V. Marne, J.)
1) Contempt Petition No. 85 of 2012 is not on Board. With the consent of the learned counsel appearing for rival parties, Contempt Petition No. 85 of 2012 is taken on board and heard alongwith Writ Petition No. 2052 of 2009.
2) The Petitioner-Society has filed the present petition seeking a direction against the Respondent-Municipal Corporation to stop construction of additional floors over and above the 5 th floor of Wing-B of the concerned building, with further direction for demolition of the additional floors. The petition also seeks to restrain the Municipal Corporation from issuing Occupancy Certificate in respect of the concerned construction till demolition of construction over and above 5 th floor of Wing-B building. The Petitioner has also challenged the No Objection Certificate (NOC) granted by the Municipal Corporation for utilization of outside Transferable Development Rights (TDR), vide Development Rights Certificate (DRC) No. 031235 issued on 13 November 2007.
3) Brief facts leading to filing of the present petition are that the Petitioner is a Co-operative Housing Society registered under the provisions of Bombay Co-operative Societies Act, 1912 and Page No.2 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC deemed to have been registered under provisions of Maharashtra Co-operative Societies Act, 1960, which carries the trade inter alia of building and of buying, selling, hiring and developing land in accordance with co-operative principles. By Indenture of Lease dated 25 August 1933, Petitioner-Society granted lease in respect of land bearing Plot No. 173 of Society's Estate Plan No. I bearing C.T.S. No. C/581 admeasuring 801.80 sq. mtrs. situated at the Junction of St. Cyril Road and St. John Road, Bandra (West), Mumbai 400 050 (the Plot) for the period of 998 years commencing from 1 April 1927 in favour of the trustees of the estate of Gasper Gonsalves. According to the Petitioners, the lease was subject to the condition of non-construction of any structure without express permission of the society and strictly in accordance with plans sanctioned and specifications previously obtained from the society. It appears that several transactions of transfer and inheritance have occurred after grant of the original lease, with the consent of the Petitioner- Society, as a result of which, Respondent Nos. 2 to 5 became lessees of the Plot. By Development Agreement dated 22 August 2003, Respondent Nos. 2 to 5 granted Development Rights in respect of the subject plot in favour of Respondent No. 6. Under the Development Agreement, Respondent No. 6 was granted right to construct new residential building having two wings, Wing-A admeasuring 348.94 sq. mtrs. consisting of two and half stilts and two and half upper stories and Wing-B consisting of stilts and upper stories as sanctioned by the Petitioner-Society and concerned authorities. Respondent No. 6 executed an undertaking in favour of the Petitioner for adhering to the rules and regulations laid down for development of plots in Petitioner's Kantwadi Scheme and for sale of the flats in the new building to be constructed by them. Respondent Nos. 2 to 5 submitted building proposal, which was approved by the Petitioner-Society. On 19 January 2004, Respondent No. 6 Page No.3 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC submitted amended plans for utilization of TDR for approval of the Petitioner. The Managing Committee approved the amended plans. The Petitioner-Society rejected the proposal for utilization of outside TDR. Petitioner Society insisted that only the TDR available in respect of land forming part of its Kantwadi Scheme must be utilized and was opposed to import of outside TDR for carrying out any development within its Kantwadi Scheme. It appears that Respondent No. 6 went ahead with the plans for utilization of outside TDR and got the same sanctioned from the Municipal Corporation. Petitioner wrote to the Respondent-Corporation seeking demolition of additional construction, which request was not acted upon by the Municipal Corporation. Accordingly, the Petitioner has filed the present petition seeking direction against the Municipal Corporation to stop additional construction of the plot in question beyond 5th floor by utilization of outside TDR. Petitioner has also sought demolition of additional construction already carried out.
4) By order dated 18 January 2010, the Petition has been admitted. A Bench of this Court granted interim relief restraining Respondent Nos. 2 to 6 from inducting any persons in flats constructed above 5th floor in Wing-B building. Petitioner-Society has filed Contempt Petition No. 85 of 2012 alleging breach of the interim order as the flats above fifth floor have apparently been sold and the flat purchasers have been inducted therein. The petition is called out for final hearing.
5) Mr. Hegde, the learned Senior Advocate appearing for the Petitioner-Society, would submit that Respondent Nos. 2 to 5, in their capacity as lessees, cannot carry out any construction on the Page No.4 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC subject plot in violation of terms and conditions of the lease. He would further submit that the conditions of the lease do not permit Respondent Nos. 2 to 5 to load outside TDR. That their request for loading of outside TDR was expressly rejected by the Petitioner- Society. That Respondent No. 6 unilaterally went ahead and got the plans sanctioned by uploading outside TDR. That Petitioner is the owner of the land and is entitled to impose conditions/restrictions about the manner in which the land can be developed. That Petitioner-Society was not averse to loading of TDR but has restricted use of outside TDR. That instead of utilizing the available TDR with the Society, Respondent No. 6 unilaterally went ahead and secured slum TDR for being loaded on building. That the Municipal Corporation is under legal obligation to revoke the sanctioned plans upon receiving a complaint from the landowner about construction being carried out contrary to the permission issued by the Society. That the Municipal Corporation has failed in its statutory duty by not taking action against the unauthorized construction erected by Respondent Nos. 2 to 6. In support of his contention that the development cannot be carried out contrary to the lease conditions and without permission of the Lessor-Society, he would rely on judgment of the Apex Court in The New India Co- operative Housing Society Ltd. Vs. MCGM And others1.
6) Mr. Hegde would further submit that Respondent No. 2 to 6 have violated interim order granted by this Court on 18 January 2010 by inducting flat purchasers. That therefore the Petitioner-Society has filed Contempt Petition No. 85 of 2012.
1 (2008) 9 SCC 694 Page No.5 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC 7) The petition is opposed by Ms. Dhond, the learned
counsel appearing for Respondent No.1-Municipal Corporation. She would submit that plans for construction sanctioned by the Municipal Corporation were in accordance with the applicable Development Control Regulations. That Municipal Corporation is not concerned with the dispute between lessor and lessee. That building has been constructed in accordance with sanctioned plan and full Occupancy Certificate has been issued by the Municipal Corporation on 22 March 2010. That MCGM is not concerned with the issue of utilization of 'inside' or 'outside' TDR. That loading of TDR was permissible in respect of the subject construction and the Municipal Corporation has rightly sanctioned the plans submitted by Respondent Nos. 2 to 6. She would pray for dismissal of the petition.
8) Mr. Godbole, the learned Senior Advocate appearing for Respondent No. 7 in Contempt Petition No. 85 of 2012, would submit that the flats in question have been purchased by Respondent No. 7 under a registered Agreement dated 12 November 2009, which was executed much prior to grant of the interim order. That Flat Nos. B-601 and B-602 were purchased by Respondent No. 7 vide registered Agreement dated 12 November 2009 well before the grant of interim order. That possession of the flats has been handed over to Respondent No. 7 on 28 December 2009, before grant of interim order dated 18 January 2010. That his client has been impleaded as a party Respondent in the main petition, and therefore, no adverse order can be passed against his client in the petition.
Page No.6 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC 9) Mr. Mirza, the learned counsel appearing for
Respondent No.6-Developer, would submit that the relevant bye- laws of the Petitioner-Society did not permit the Petitioner-Society to impose any restriction on the purchase of TDR from the outside market. That under the bye-laws, the only right which Petitioner- Society has is to recover Rs. 60 per sq. ft. of the total built up area from the lessees. That the bye-laws, as well as Clause 8 of the lease deed dispense with the requirement of securing lessor's consent under Section 108 of the Transfer of Property Act, 1882. That there was no stipulation in the Intimation of Disapproval (IOD) issued by MCGM requiring Respondent No. 6 to secure NOC from the Petitioner-Society, which was the case before the Court in The New India Co-operative Housing Society Limited (supra). That Defendant No. 6 entered into a registered Development Agreement on 22 August 2003, whereas the Agreement between the Petitioner-Society and Respondent Nos. 2 to 5 was executed subsequently on 30 August 2003 after noticing Clause 20 of the Agreement dated 22 August 2003 entitling the Developer to load outside TDR. Without prejudice to the above contentions, Mr. Mirza would submit that Respondent No. 6 had offered to purchase TDR from the Petitioner-Society at the rate of Rs. 2,500/- per sq. ft. and that Respondent No. 6 still stands by the said offer and is ready to pay the price for the TDR at the rate of Rs. 2,500/- per sq. ft. or at such other reasonable rate as this Hon'ble Court may deem fit. That while considering this offer, this Court may take into consideration furnishing of bank guarantee of Rs. 50 Lakh submitted by the lessees, which the Petitioner-Society has already encashed.
10) None has appeared on behalf of Respondent Nos. 2 to 5 (lessees), and in absence of any appearance on behalf of Respondent Page No.7 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC Nos. 2 to 5, we have perused the Affidavit-in-Reply filed on their behalf.
11) Having considered the submissions canvassed by the learned counsel for the parties, it is seen that the real dispute between the parties is about loading of 'inside' versus 'outside' TDR. Petitioner-Society appears to be the land owner (Lessor) of large chunk of land in Bandra, Mumbai which it calls as Kantwadi Scheme. The TDR generated in respect of the land of Kantwadi Scheme is referred to as the 'inside' TDR, whereas the TDR generated in respect of lands not forming part of Petitioner's Kantwadi Scheme is being referred to by the parties as 'outside' TDR. While the Petitioner-Society was willing to grant permission for loading of 'inside' TDR, it is aggrieved by the actions of the lessees and the developers in loading 'outside' FSI for carrying out construction above 5th floor of B-Wing building. Whether a Lessor- Society can put a restriction on utilization of TDR by its Member- Lessee while redeveloping the leased land is the issue that arises for determination before us. This is the scope of inquiry in the present Petition.
12) Respondent No. 6-Developer has purchased outside FSI through DRC No. 031235 issued on 13 November 2007 and has loaded the same while constructing the building on the subject Plot. Petitioner-Society is aggrieved by the actions of Lessees (Respondent Nos. 2 to 5) and the Developer (Respondent No. 6) in loading outside TDR while constructing Wing-B building beyond 5 th floor. Our attention is invited to the conditions of the Lease Deed as well as the stipulations of Development Agreement, under which the lessees as well as developer had agreed to carry out construction strictly after Page No.8 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC securing permissions from the Petitioner-Society. It is Petitioner- Society's contention that there is specific restriction on the loading of TDR/floating FSI while carrying out construction on the leased Plots. However, it appears that the Petitioner-Society was willing to permit loading of TDR on the subject Plot but insisted that the Respondent Nos. 2 to 6 must purchase the TDR available with the Society and could not purchase the same from outside market.
13) It appears that the Petitioner-Society owned TDR generated out of the land in its Kantwadi Scheme and was desirous of selling the same. It had invited public tenders for the sale of TDR of 1,404 sq. ft. Respondent No. 6 had shown interest in purchasing the TDR for being loaded on Plot No. 173 and by his letter dated 27 May 2005, had offered the price of Rs. 2,500/- per sq. ft. in pursuance of tender. The Petitioner had responded vide letter dated 7 July 2005, contending that the highest offer was received by the Society was Rs. 3,552/- per sq. ft. and had called upon Respondent No. 6 to raise the offer to Rs. 3,550/- per sq. ft. It appears that there was a disagreement between the parties on the rate at which the TDR could be purchased and this is how the transaction of purchase of the TDR available with the Society (inside TDR) could not fructify.
14) The above correspondence would indicate that the Petitioner-Society was not averse per se to the construction of additional floors by utilizing TDR. Its only objection was to utilize TDR generated outside its land, as it believed that only the TDR generated on Petitioner's land could be loaded on the subject plot. Thus, the dispute between the parties was about the exact TDR that could be loaded.
Page No.9 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC 15) Petitioner-Society had relied on terms and conditions of
the Lease Deed prohibiting the utilization of TDR or floating FSI. In The New India Co-operative Housing Society Limited (supra) the Apex Court has held that sanctioning of building permission without the NOC of the Lessor-Society would be illegal. The Apex Court has held thus :-
19. In our opinion, when there is a specific stipulation in the lease deed dated 31-5-1973 that NOC from the lessor has to be obtained for the purpose of obtaining sanction of the building plan from the Municipal Corporation such NOC from the lessor would also be necessary for an amended building plan before the Municipal Corporation can sanction the building plan. To take a contrary view would make the said stipulation in the lease deed, which in this case is in Clause 3(6) of the lease deed, redundant.
16) Thus, the building could not be constructed without seeking Petitioner-Society's NOC. In the present case, Petitioner- Society had issued permission for construction of building on the Plot and is not questioning the entire building permission sanctioned by the MCGM. However, the Society is objecting to utilization of outside TDR while constructing the building and is insisting that loading of outside TDR without its permission renders the building plans sanctioned by MCGM illegal, atleast to the extent of construction above 5th floor of B- Wing building. Thus, the case does not involve blatant unauthorised construction sans society's permission. As observed above, the Petitioner-Society is not totally averse to loading of TDR and the disputes between the parties arose only on valuation of the TDR available with the Society.
17) It appears that in Affidavit-in-Reply dated 1 December 2009 filed on behalf of Respondent No. 6, the following statements are made :-
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9. I say that due to the Petitioner's ulterior motive, bonafide purchasers are adversely affected. I humbly submit that in the interest of natural justice and good conscience, the present petition be dismissed with exemplary costs. The Respondent No. 6 is even willing to pay premium to the Petitioner society as compensation for having loaded the TDR purchase from the market. The Respondent No. 6 by a letter dated 26th August, 2009 informed to the Managing Committee of the Petitioner of the above. A copy of the said letter dated 26th August, 2009, is annexed herewith and marked as "Annexure VIII"
(emphasis added)
18) Thus, Respondent No. 6 has shown willingness to pay a premium to the Petitioner-Society towards compensation for having loaded TDR purchased by the market. Respondent No. 6 had offered to purchase TDR from the Society at the rate of Rs. 2,500/- per sq. ft., which is clear from the averments in paragraph 6(d) of the Affidavit :-
(d) I say that vide letter dated 27 th May, 2005, the Respondent No. 6 informed the Petitioner society that the Respondent No. 6 were desirous to load the T.D.R. on the Plot No. 173. The Respondent No. 6 offered Rs. 2,500/- per sq. ft. for the abovementioned public tender issued by the Petitioner to purchase the T.D.R. A copy of the letter dated 27th May, 2005 is enclosed herein and marked as 'Annexure II'.
19) Ordinarily, the dispute raised by lessor complaining about construction being carried out at the instance of lessee in violation of terms of Lease Deed cannot be a subject matter of a petition filed under provisions of Article 226 of the Constitution of India. If Petitioner-lessor believes that the land is being developed contrary to the conditions of lease, the Petitioner ought to have filed a suit against the lessees as well as against Respondent No. 6-
Developer. However, the present petition has been admitted by a Bench of this Court vide order dated 18 January 2010. Though, Page No.11 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC interim order was passed on 18 January 2010 restraining Respondent Nos. 2 to 6 from inducting any persons into flats constructed above the 5th floor in Wing-B, it appears that all the flats have already been sold by Respondent No. 6-Developer. As of now, we only have details of flats purchased by Respondent No. 7, which appears to have been purchased well before the passing of the interim order. Petitioner has not impleaded the flat purchasers as parties to the petition even though it has sought a prayer for demolition of their flats.
20) The position as of today is such that the construction of the building is complete. Full Occupancy Certificate is issued on 22 March 2010 and all flats in the building are apparently occupied. Purchasers of flats constructed above the 5 th floor of Wing-B building are not impleaded as party Respondents in the present petition. The dispute between Petitioner-Society and Respondent No.6 was essentially about the rate at which TDR available with the Society could be purchased. If Petitioner-Society was to receive the expected price, it would have no objection to the loading of TDR for the purpose of carrying out additional construction above the 5 th floor of Wing-B building. The petition has already been admitted and pending for the last 16 long years. Though ordinarily suit ought to have been filed by the Petitioner-Society seeking an injunction against Respondent Nos. 2 to 6, we are of the view that it is now too late in a day to relegate the Petitioner-Society to the remedy of suit. Filing of suit by Petitioner-Society at this belated stage, by impleading flat purchasers, would result in another prolonged round of litigation between the parties. On the other hand, if the willingness shown by Respondent No.6 to pay a premium for the Page No.12 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC TDR to the Petitioner-Society is taken into consideration, the entire controversy between the parties can be put to an end.
21) In the written submissions tendered on behalf of Respondent No. 6, it has offered to pay Rs. 2500/-per sq. ft. or such other reasonable amount as suggested by the Court for having utilized the outside TDR. Though Respondent No. 6 has urged that while directing payment of premium to the Society, the amount of encashed Bank Guarantee given by the lessees be taken into consideration. In our view, it is not necessary to go into the issue of encashed bank guarantee. Respondent No. 6 has left it to the Court to direct payment of premium @ Rs. 2500/- per sq. ft. or such other amount as can be determined by the Court. Since this Court is not fixing the rate higher than Rs. 2500/- per sq. ft., the amount of premium payable to Petitioner-Society shall be over and above any amount already received by Petitioner-Society from the lessees.
22) Mr. Hegde, after taking instructions, has fairly made a statement that the Petitioner-Society is willing to accept a premium at the rate of Rs. 2,500/- per sq. ft., which was offered by Respondent No. 6 vide Affidavit-in-Reply dated 1 December 2009 filed in Notice of Motion No. 553 of 2009. In our view, therefore, the entire controversy can be put to rest by accepting the willingness of Respondent No. 6 to pay premium at the rate of Rs. 2,500/- per sq. ft. to the Petitioner-Society, along with a reasonable rate of interest. Since the offer was made in the year 2009, in our view, the amount of premium to be paid to the Petitioner-Society can carry reasonable simple interest of 6% per annum. Once such premium is paid, the Petitioner-Society can have no objection in respect of the construction already carried out on the subject plot and parties need Page No.13 of 14 22 August 2025 ::: Uploaded on - 22/08/2025 ::: Downloaded on - 22/08/2025 23:56:51 ::: Ajit Pathrikar WP-2052-2009-FC not litigate any further on the issue of construction being carried out in violation of conditions of lease. Upon receipt of the amount of premium as directed above, Petitioner-Society shall not raise any objection about the construction already carried out by Respondent No. 6 on the subject plot.
23) We, accordingly, proceed to pass the following order :-
ORDER
(a) Respondent No. 6 shall pay to the Petitioner-Society the amount of premium for utilization of outside TDR at the rate of Rs. 2,500/- per sq. ft. on area used as outside TDR, along with simple interest at the rate of 6% per annum from 1 January 2010 till the date of payment, within 8 weeks.
(b) With the above directions, Writ Petition No. 2052 of 2009 is disposed of.
(c) In view of settlement of the entire dispute between the parties, we are not inclined to entertain the contempt petition filed by the Petitioner-Society and accordingly the Contempt Petition No. 85 of 2012 is also disposed of.
(d) With disposal of the main Petition as well as the Contempt Petition, nothing survives in Interim Application (L) No. 35451 of 2024, and the same is also disposed of.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2025.08.22
17:10:02 Page No.14 of 14
+0530 22 August 2025
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