Deemed Conveyance, Appurtenant & Common Area and Recreational Ground
Judgment dated 28.4.2026 of the High Court of Bombay in Writ Petition No.10961 of 2025 of Rashesh Cooperative Housing Society Ltd Vs. State of Maharashtra and others
Appurtenant Area is not limited just to plinth footprint nor it extends to all open land. It includes those surrounding lands which are functionally necessary for building use and enjoyment, mandated by regulations (like set backs, margins, fire access, circulation) and shown as appurtenant in the sanctioned plans.
Appurtenant land passes with the building by operation of law – Section 8 of the Transfer of Property Act. However, layout-level common amenities (parks, club houses and recreational ground) are common areas and not appurtenant areas.
Deemed Conveyance is not confined to building plinth only
Deemed Conveyance of right, title and interest in the land and building must include land and open spaces necessary for the beneficial enjoyment of the building and cannot be reduced to a mere transfer of superstructure.
A promoter cannot retain mandatory open spaces which are essential for sanction of the building and grant of occupancy certificate.
Bombay HC Leading and Clarificatory Ruling on Deemed Conveyance in Multi Storeyed Building / Layout Development, particularly on the scope of plinth area, appurtenant area and entitlement in recreational ground under MOFA, Development Control Regulations and the Government Resolutions of 22 June 2018.
Scope of Appurtenant Area under MOFA, Building Byelaws and the Govt. Resolution of 2018.
In a TDR-loaded layout, should the society’s land share be computed by plinth area alone (as petitioner urges) or by total built-up FSI (as respondents fear)?
Recreational Ground (RG) entitlement: Is the society entitled to a share of the layout’s RG, and if so how much?
Appurtenant Vs. Common area
The petitioner society was formed on 1.12.2015. The respondent no.3 had obtained revised sanctioned plans during 2018 to 2019 without prior consent of the society and in breach of section 14 of MahaRERA.
The society gave legal notice dated 11.5.2023 for conveyance to the respondent nos.2, 3 to 7 and others.
On 19.6.2023, the society filed application for deemed conveyance. However, the Authority had declined to grant the certificate.
A promoter cannot convey only the footprint beneath columns and staircase and retain all open areas despite those open areas being mandatory under building rules. Such open lands are the reason why occupation certificate could be granted. If setback, access width, recreational reservation or ventilation distance were necessary to sanction the building, then such spaces cannot later be treated as inalienable right of the promoter.
In the present case the issue is what land component, open spaces, and common shares must accompany such conveyance. A conveyance of building plinth without usable rights would defeat purpose.
Thus, on combined reading of MOFA Section 11(1), Section 8 of the Transfer of Property Act, and the Development Control Regulations, this Court is of opinion that where a building is conveyed to a society of flat purchasers, the transfer carries with it those surrounding lands and open spaces which are appurtenant, necessary or incidental to the beneficial enjoyment of that building. Any contrary claim by promoter must be established from sanctioned reservations.
Recreational Ground in a layout is ordinarily for common beneficial use of all entitled occupants. However, it follows that the petitioner cannot be denied beneficial participation in the RG. Once the petitioner forms part of the sanctioned layout and its purchasers acquired flats in that project, the society becomes entitled to undivided share in the common RG proportionate to its participation.
