Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. Jamadar, J.
M/s. ACME Enterprises and ors.- Petitioners
Versus
Deputy Registrar, Co-operative Societies (2) and ors. – Respondents
Writ Petition No. 5230 of 2022 With Interim Application (L) No. 3700 of 2023
Decided On : 05-06-2023
Deemed Conveyance - Maharashtra Ownership Flats Act, 1963 - Section 11 - [Section 11 of MOFA, 1963] - The court discussed the provisions of Section 11 of the MOFA, 1963 and its application in the case. The court emphasized the limited nature of the competent authority's jurisdiction and its inability to delve into aspects of title. The judgment clarified the conditions and controls on the authority to grant deemed conveyance and highlighted that the competent authority cannot convey more than what the promoter had agreed to convey under the agreement executed under Section 4. The court also reiterated that an order granting deemed conveyance does not conclude the issue of right, title, and interest in the immovable property, and the aggrieved parties are entitled to institute a suit before the Civil Court to substantiate their claim.
Fact of the Case:
The petitioners resisted an order granting unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats Act, 1963 (MOFA, 1963) in respect of a property they had developed. The petitioners claimed that the competent authority had ordered the execution of conveyance in excess of the proportionate FSI consumed in the construction of the units for which the respondent society was formed. They argued that the competent authority failed to consider all relevant materials, including the MOFA Agreement and the plans sanctioned by the BMC.
Finding of the Court:
The court found that the competent authority's determination of deemed conveyance was limited in nature and could not delve into aspects of title. It emphasized that the competent authority cannot convey more than what the promoter had agreed to convey under the agreement executed under Section 4 of the MOFA, 1963. The court dismissed the petition but granted the petitioners the liberty to institute a substantive suit to agitate their claim of title to the allegedly carved out Plot 'D1' and assail the entitlement of the respondent society to have conveyance of the entire Plot 'D' admeasuring 18,602.20 sq. mtrs.
Issues: The issues revolved around the resistance of the petitioners to the execution of conveyance in favor of the respondent society, claiming that it was in the realm of a dispute as to title and could legitimately form a subject matter of a substantive suit.
Ratio Decidendi: The court clarified the limited nature of the competent authority's jurisdiction and its inability to delve into aspects of title. It reiterated that an order granting deemed conveyance does not conclude the issue of right, title, and interest in the immovable property, and the aggrieved parties are entitled to institute a suit before the Civil Court to substantiate their claim.
Final Decision: The petition was dismissed, but the petitioners were granted the liberty to institute a substantive suit to agitate their claim of title to the allegedly carved out Plot 'D1' and assail the entitlement of the respondent society to have conveyance of the entire Plot 'D' admeasuring 18,602.20 sq. mtrs.
JUDGMENT :
1. Rule. Rule made returnable forthwith and with the consent of the learned Counsel for the parties heard finally.
2. The petitioners take exception to an order dated 26th November, 2019, passed by the District Deputy Registrar, Cooperative Societies and the Competent Authority, granting an unilateral deemed conveyance under Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“the MOFA, 1963”) in respect of the premises Nilam Nagar, Building Nos.11A to 11J situated at City Survey No. 43 + 44 + 45/4A village Mulund (East), Taluka Kurla, Mumbai Suburban District, admearsuring 18,602.20 sq. mtrs. (including Layout RG area) (“the subject premises”).
3. Shorn of unnecessary details, the background facts can be stated as under:
(b) The petitioners claim, in respect of Plot “D” plans were sanctioned by Brinhanmumbai Municipal Corporation (“BMC”) for construction of buildings, namely, Building No.1 having 3 Wings and Building No.2 having 10 Wings and Building No.3 with total FSI of 21,069.99 sq. mtrs. inclusive of DP Road FSI. The petitioners entered into Agreement for Sale in respect of flats in Building No.2 comprising of 10 wings which were eventually named as Nilam Nagar Building Nos.11A to 11J. The petitioners also claim to have constructed plinth of Building No.1 having 3 wings. It is the case of the petitioners that in the year 2005, BMC sanctioned plans in respect of Plot “D”.
(c) Eventually, vide letter dated 25th September, 2014 BMC permitted subdivision of Plot “D” into two plots namely Plot “D” admeasuring 1,54,02.85 sq. mtrs. and Plot “D1” admeasuring 3200 sq. mtrs. on the condition that PR card for the subdivided plots shall be obtained and submitted to BMC and layout RG shall be conveyed in the name of Society – Federation of Societies. The petitioners claimed that the petitioners have been and continue to be in possession of Building No.1 constructed upto plinth level and Plot “D1”, carved out of Plot “D”.
(d) On 6th November, 2012, Nilam Nagar Building Nos.11A to 11J Co-operative Society Association Limited, respondent No.2, was formed and registered. Respondent No.2, in turn, consists of 10 Societies.
(e) On 14th September, 2018, respondent No.2 addressed a notice to the petitioners seeking conveyance in respect of the entire area of Plot “D” and “D1” i.e. 18602.20 sq. mtrs. That was followed by an application before the Deputy Registrar and Competent Authority, respondent No.1, for an order of unilateral deemed conveyance in respect of the subject property admeasuring 18602.20 sq. mtrs.
(f) The petitioners resisted the application by filing a reply. The petitioners, inter alia, contended that Plot “D” has since been divided in two parts. BMC had sanctioned the subdivision of original Plot “D”. The petitioners have all along been in possession of building No.1 which was initially erected upto plinth level. BMC had granted CC beyond plinth level. The petitioners were entitled in law to develop Building No.1 and utilize the balance FSI. Therefore, respondent No.2 Society was not entitled to have conveyance in respect of the entire area of original Plot “D” i.e. 18,602.20 sq. mtrs.
(g) By the impugned order the competent authority was persuaded to hold that a case for grant of
The competent authority's jurisdiction to grant deemed conveyance is limited and cannot delve into aspects of title. An order granting deemed conveyance does not conclude the issue of right, title, a....
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....
The Competent Authority's jurisdiction under Section 11 of the MOFA Act is limited to enforcing the promoter's obligations, not adjudicating title disputes, which must be resolved in civil courts.
The Competent Authority's failure to ensure service of notice and adherence to natural justice principles invalidates the ex parte decision regarding Unilateral Deemed Conveyance.
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 cannot adjudicate title disputes; it must fulfill statutory obligations to issue deemed conveyance to the Society.
Deemed conveyance under MOFA must adhere to statutory obligations, and timelines cannot be circumvented by private agreements; competent authority must assess the proportional area for conveyance acc....
The Competent Authority's deemed conveyance under MOFA must adhere strictly to existing agreements, and disputes over property rights should be resolved in civil court.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
