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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ARIF S. DOCTOR, J.
Saurin Ketan Jariwala - Petitioner
Versus
State of Maharashtra, Through Office Government Pleader, Original Side, High Court, Bombay & Ors. - Respondents
Writ Petition No. 349 of 2020
Decided On : 03-07-2023
Deemed Conveyance - Maharashtra Ownership of Flats Act, 1963 - Section 11 - [MOFA] - [Section 11] - The court discussed the applicability of MOFA and the rights and obligations of the parties under the Agreement. It highlighted the definition of 'Promoter' under MOFA and the obligations of the Promoter to transfer rights, title, and interest in the property to the Co-operative Society. The court emphasized that the Agreement explicitly stated that MOFA would govern the rights and obligations between the parties, and therefore, the provisions of MOFA applied in full. The court held that the Petitioner, as a Promoter, was required to transfer its rights in the property to the Co-operative Society, and the Deemed Conveyance was justified under MOFA.
Fact of the Case:
The Petition challenged an order and a certificate of Deemed Conveyance issued under the Maharashtra Ownership of Flats Act, 1963. The Petitioner claimed to retain ownership of the land and rights in the building, while the tenants sought ownership of their respective flats. The court analyzed the Agreement, the applicability of MOFA, and the obligations of the Promoter under MOFA.
Finding of the Court:
The court found that the Agreement explicitly stated that MOFA would govern the rights and obligations between the parties, and therefore, the provisions of MOFA applied in full. It held that the Petitioner, as a Promoter, was required to transfer its rights in the property to the Co-operative Society, and the Deemed Conveyance was justified under MOFA.
Issues: The issues revolved around the applicability of MOFA, the rights and obligations of the parties under the Agreement, and the validity of the Deemed Conveyance sought by the tenants.
Ratio Decidendi: The court's decision was based on the explicit agreement between the parties that MOFA would govern their rights and obligations. It emphasized the definition of 'Promoter' under MOFA and the obligations of the Promoter to transfer rights, title, and interest in the property to the Co-operative Society.
Final Decision: The court dismissed the Writ Petition, holding that the Deemed Conveyance was justified under MOFA, and the Petitioner was required to transfer its rights in the property to the Co-operative Society.
JUDGMENT :
1. The present Petition impugns (i) an order as also (ii) a certificate of Deemed Conveyance both dated 17th October 2019 passed by Respondent No. 2 i.e. the District Deputy Registrar Co-Operative Societies, Mumbai, being the Competent Authority under the provisions of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sales Management and Transfer) Act, 1963 (“MOFA”) on an Application filed by Respondent No.3 under Section 11 of MOFA.
The relevant facts are as follows :-
2. The Petitioner claims to be the successor in interest of a partnership firm known as Venisons. By and under a Deed of Assignment and Transfer dated 14th November 1979 entered into between one Ms. Tehmina Khorshed Karanjia and Venisons, the building known as “Quetta Terrace” (“the said building”), and land bearing Plot No.10, Cadastral Survey No.427 of Malabar Hill Division in D Ward (“the said land”) was leased to Venisons. The members of Respondent No. 3 were the tenants in respect of the flats in the said building.
3. Since the said building was in dilapidated condition, Venisons decided to redevelop the same. It was for this purpose that from the year 1991 Venisons entered into various agreements with the tenants of the said building for redevelopment of the same and to provide alternate accommodation to the existing tenants.
4. Venisons thereafter applied for the requisite permission for redevelopment of the said building. The Bombay Building Repair and Reconstruction Board granted an NOC dated 9th March, 1993 and Condition No. 1 whereof was as follows, viz.
5. In the year 1994 Venisons entered into an Agreement dated 21st July 1994 whereby new flat numbers were allocated in the to be constructed building to the existing tenants.
6. Thereafter Venisons entered into another Agreement dated 15th January 1997 with the tenants for inter-alia settling the terms and conditions of the Co-operative Society that would be formed by the tenants.
7. It is this Agreement that falls consideration in the present Writ Petition and based on which the Application for Deemed Conveyance had been filed. It is useful at this juncture to set out the following relevant clauses of the said Agreement viz. :-
2. The Landlords and the Tenants along with other Tenants in the building will co-operate with each other and jointly form a Co-operative Housing Society to be called ‘[ARSJWA LIMK Co-OPERATIVE HOUSING SOCIETY LIMITED” if approved or such other name as may be approved and sanctioned by the Registrar of Co-Op Housing Society Ltd. and the Landlords, the Tenants herein and other Tenants of various premises in the New Bluilding will joint in and become members of the said “PARSHWA KUNJ COOPERATIVE HOUSING SOCIETY LIMITED.” There upon and after receipt of the full construction cost, Taxes and other outgoing due and payable to the authorities concerned, the Landlords undertake to execute and register such documents as may be required to confirm the ownership of the Tenants in respect of the said flat and the rights power and authorities of the said society to manage, look after and attend to the affairs and matters of the said new building. All costs, charges and expenses of the formation, incorporation and registration of the said Society and or any other documents and or agreements will be shared by the members of the said Society in proportion to the area of their respective premises.
3. …..
4. This Agreement a
The main legal point established in the judgment is the obligation of the Promoter under MOFA to transfer rights, title, and interest in the property to the Co-operative Society, as explicitly stated....
The court established that an agreement recognizing tenants as owners of flats, coupled with the receipt of consideration for those flats, qualifies the landlord as a promoter under the Maharashtra O....
The Competent Authority under MOFA cannot adjudicate title disputes; it must fulfill statutory obligations to issue deemed conveyance to the Society.
The main legal point established in the judgment is the nature of power exercised by the Competent Authority under Section 11 of the MOFA Act, emphasizing the obligation of the promoter to convey rig....
The competent authority under MOFA must properly examine the legality and validity of the deed of conveyance and consider the applicant's eligibility and the promoter's compliance with the obligation....
The Maharashtra Ownership Flats Act mandates conveyance to be executed by promoters; failure triggers a remedial process under Section 11, which is not subject to extensive trials.
Under Section 11 MOFA, Competent Authority conducts summary prima facie enquiry via key documents to grant deemed conveyance on promoter's failure; cannot hold full title trial; pending society regis....
The statutory obligation under Section 11 of MOFA requires the promoter to convey both land and building to the society, and the Competent Authority must enforce this obligation upon the promoter's f....
Subsisting leasehold rights in land and ownership of superstructure preclude deemed conveyance to tenants' society under MOFA without extinguishment proof, valid Section 4 agreements and proper docum....
Deemed conveyance must only cover completed areas of a property, reserving rights of the developer for ongoing and future construction under applicable law.
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