Shared Layout, Shared Land: Bombay HC Fixes Who Owns How Much in a Malad Layout

In 1995, an old housing society on Narsing Lane in Malad (West) agreed to let a new owner load up to 40 percent TDR and extra FSI on the layout it shared. A new building, Kent Heights, came up and received its occupancy certificate in 2008. Its buyers, who had sued the developer as early as 2003, spent years fighting over how much of the land under the whole layout was theirs, including a share of two recreational grounds the developer had restricted them from using. In 2013 they took a conveyance of just 2,040 square metres. On October 22, 2026, the Bombay High Court said they are entitled to more.

The judgment, in Vardhman Nagar Co-operative Housing Society v. Kent Heights Co-operative Housing Society, Writ Petition No. 11312 of 2025, was delivered by Justice Sandeep V. Marne. It is a Mumbai case under Maharashtra's flat ownership law, but the core question will be familiar to any Bengaluru buyer in a multi-building layout: when the land is shared, who gets how much, and does an early partial deal lock you in?

The short answer. The court partly allowed the older society's petition, set aside the Competent Authority's June 9, 2025 order and remanded the matter, but itself fixed the land shares: 5,302.68 square metres for Vardhman Nagar and 3,805.42 square metres for Kent Heights, each including a share of the recreational grounds and set-back. Kent Heights, already holding 2,040 square metres, gets a balance of 1,765.42 square metres and must file its application within four weeks. The court held that a contractual arrangement "does not defeat the right" to conveyance under MOFA and that "there cannot be any estoppel against statute." The trade-off: Kent Heights' buyers did not get everything the authority had given them, but they escaped being held to the 2013 deal.

How did one layout end up with two societies fighting over land?

According to the judgment, the land is Survey No. 47, Hissa No. 1 (part), Village Malad, a layout of 9,108.10 square metres reduced from an original 10,216 square metres. Between 1972 and 1976 the original developer built four buildings with eight wings for the older society, with a final occupancy certificate on May 30, 1979. The older society says only 6,730.38 of the 7,710.65 square metres of sanctioned built-up area was used, leaving about 980.27 square metres unused.

The land later passed to Kent Real Estate Pvt. Ltd. Under an agreement of October 17, 1995 with the older society, Kent could load up to 40 percent TDR and extra FSI, and buyers in the new building were to become members of the older society. Kent built Kent Heights using TDR and incentive FSI, and its occupancy certificate of October 23, 2008 shows 6,899.37 square metres of built-up area. Kent Heights' buyers complained that the building was left incomplete, that water connections and promised amenities were not provided, and that they were restricted from using the recreational grounds.

Why did the 2,040 square metre conveyance not settle the matter?

Kent Heights sued in 2003. On July 31, 2008, the City Civil Court partly decreed the suit, directing Kent to complete the building, obtain an occupancy certificate and convey "his right, title and interest in the land and the building," without specifying an area. In execution, a draft conveyance for 3,040 square metres was issued in December 2010, but on December 31, 2013, Kent and Kent Heights executed a registered deed for only 2,040 square metres, described as the land below and appurtenant to the building.

The High Court held that because the decree fixed no area, there was no adjudicated entitlement of 2,040 square metres, so neither res judicata nor estoppel applied. It said "The Civil Court cannot leave the question of land area to speculation," and that the executing court "cannot go behind the decree." The 2013 deed was not shown to have been placed before the executing court or to have satisfied the decree; the court treated it as a private arrangement. Under Section 16 of MOFA, it held, a contractual arrangement between promoter and society does not defeat the statutory right to conveyance.

Why could the executing court not simply fix the area?

Because, the High Court held, deciding each society's share in a layout is an adjudicatory question, not a matter of execution or clerical correction. Neither Section 47 of the Code of Civil Procedure, which deals with questions in execution, nor Section 152, which allows correction of clerical errors, could be used to fill the gap left by a decree that named no area. The court distinguished the Supreme Court's Pratibha Singh approach to curing defective property descriptions, saying it does not apply where the trial court never fixed each society's share in the first place.

The court also dealt with whether there had been a "failure" by the promoter, the jurisdictional fact for deemed conveyance under Section 11 of MOFA. It accepted that a registered conveyance can end such failure in ordinary cases, but said that leaving the balance land with the developer here would produce an incongruous result. That, the court said, justified the Competent Authority's decision to give Kent Heights liberty to seek the balance.

What did the court say about the recreational grounds?

That they are common amenities of the layout, and that the 2,040 square metre view would have left Kent Heights with no share in them at all, so that the older society alone would own them. The court treated this as a reason to support proportionate division of the land. Under its final figures, Kent Heights receives 568.51 square metres of recreational ground and the older society 792.19 square metres.

For buyers, this is the part that turns a legal dispute into a daily one. Access to open space in a shared layout can depend on who owns it. PropNewz explained what flat buyers co-own in common areas in our guide to common areas and association handover, and how conveyance works for Mumbai societies in our guide to conveyance and deemed conveyance.

Did the 1995 membership clause matter?

No. The 1995 agreement required buyers of the new building to become members of the older society. Kent Heights instead registered its own society. The court said the older society could have challenged that registration but did not, called the non-adherence "wholly irrelevant for deciding the issue at hand," and said the breach did not give the older society a handle to withdraw its consent. Once a society is registered, it observed, conveyance becomes its lawful entitlement under MOFA.

What happens now?

The Competent Authority's June 9, 2025 order, which had given the older society 4,497.58 square metres and allotted Kent Heights a total of 4,610.52 square metres, is set aside. Kent Heights must file its deemed conveyance application within four weeks, and the authority must decide both applications together and issue certificates on the figures the court fixed. There was no order as to costs.

The figures show what proportionate division can mean in practice. Compared with the authority's order, the older society's total rose by about 805 square metres and Kent Heights' total fell by about 805 square metres, but Kent Heights still ends up with nearly double the 2,040 square metres it accepted in 2013.

The older society's figure has also moved over time. The authority's first order, of March 30, 2021, had granted it 6,748.33 square metres; that order was challenged by Kent Heights and the matter was remanded, leading to the June 2025 order that has now been set aside. Each round produced a different number, which is itself a warning about how long such disputes can run.

What should a Bengaluru buyer in a shared layout check?

Find out how land and open spaces are divided before you buy, and be wary of any deal that conveys only the land under your building. The checklist below follows the issues the court had to resolve.

1. Ask for the approved layout plan showing every building, open space and set-back.
2. Check how much built-up area each building used, including any TDR or incentive FSI.
3. Read any agreement between older and newer buildings on FSI, membership and land.
4. Confirm whether your building's share includes recreational grounds and other amenities.
5. Be cautious about accepting a conveyance limited to the footprint of your building.
6. If a court decree is involved, check whether it fixes an area or leaves it open.
7. Take legal advice before signing any deal that settles land share in a shared layout.

Frequently asked questions

What did the Bombay High Court decide in Vardhman Nagar CHS v. Kent Heights CHS?

On October 22, 2026, Justice Sandeep V. Marne partly allowed the petition, set aside the Competent Authority's June 9, 2025 order and remanded it, fixing totals of 5,302.68 square metres for Vardhman Nagar and 3,805.42 square metres for Kent Heights, including recreational ground and set-back shares. There was no order as to costs.

Why was Kent Heights not limited to the 2,040 square metres conveyed in 2013?

The 2008 civil court decree fixed no area, so there was no adjudicated entitlement and no res judicata or estoppel. The 2013 deed was treated as a private arrangement, and under Section 16 of MOFA a contractual arrangement does not defeat the statutory right to conveyance.

How were the recreational grounds dealt with?

The court treated them as common amenities of the layout and noted that limiting Kent Heights to 2,040 square metres would have left it no share in them. It allotted 568.51 square metres of recreational ground to Kent Heights and 792.19 square metres to Vardhman Nagar.

What should a buyer in a shared layout check?

Get the approved layout plan, check each building's built-up area including TDR, read any agreement between older and newer buildings, confirm your share of recreational grounds and amenities, and be cautious about accepting a conveyance limited to your building's footprint. Take legal advice before settling land share.

Last updated 2026-11-06. PropNewz Team.