Indian Kanoon - Search engine for Indian Law

9. Per contra, Dr. Abhinav Chandrachud, learned counsel appearing on behalf of respondent No. 1, opposed the petitions.

wp3585-2026 with wpst7439-2026-J.doc Inviting attention to the approved layout plan dated 9 November 2011, learned counsel submitted that the said layout pertained to Survey No. 60/1. He thereafter drew attention to the agreement dated 9 October 2018 and submitted that the purchasers, under the said agreement, were expressly put to notice through a specific clause that the total net area of the plot was 28,110.16 square meters and the total development potential of the plot was 51,160.49 square meters. He submitted that the agreement clearly disclosed that the current project comprised three phases, of which only Phase I had then been undertaken. According to him, in order to avoid any deficiency in disclosure, the full development potential of 51,160.49 square meters had been transparently mentioned in the agreement itself. Learned counsel also relied upon Clause 10 of the agreement and submitted that the contemplated conveyance was not of the entire larger parcel, but of title in the plot together with proportionate undivided share in the common areas. He further submitted that in the First Schedule to the agreement, the non-agricultural permission dated 7 July 2009 for an area of 16,461.14 square meters had also been specifically disclosed. On the aforesaid basis, it was contended that while determining proportionate entitlement, the Competent Authority rightly took into account the sanctioned plan of the year 2020.

         (i)      Gross Plot Area = 25,344.64 sq. mtrs;

         (ii)     Road acquisition / proposed road deductions = 724.00
         sq. mtrs.;






                                                   wp3585-2026 with wpst7439-2026-J.doc


         (iii) Net Gross Plot Area = 24,620.64 sq. mtrs.;

(iv) Internal roads / open space etc. are part of common amenities within the layout;

(v) Net Area of Plot after deductions = 13,641.93 sq. mtrs.;

(v) Internal road benefit added for FAR = 4,823.55 sq. mtrs.;

17,433.39 / 18,372.42 = 0.94889 approximately 94.889%. Now applying this ratio to the net gross plot area which includes common areas, roads, amenity rights, namely 24,620.64 sq. mtrs.:

24,620.64 × 0.94889 = 23,362.26 sq. mtrs. This tallies with the Architect Certificate produced by petitioners.

38. The 2020 layout relied upon shows enlarged future development potential, TDR loading, special FSI and total built-up area exceeding 52,000 sq. mtrs. Such future layout cannot be used wp3585-2026 with wpst7439-2026-J.doc for curtailing vested conveyance rights arising from the original disclosed project, particularly when the society buildings had already been completed and society stood registered in 2019. Under MOFA and the law declared in Jayantilal Investments and Malad Kokil, later unilateral expansion cannot diminish proportionate rights unless fully disclosed.