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IN THE HIGH COURT OF BOMBAY
Sharmila U. Deshmukh, J.
Garden A-1 Chsl - Appellant
Versus
State of Maharashtra & Ors. - Respondents
Writ Petition No. 7668 of 2023
Decided On : 28-03-2024
MOFA - Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 11, Section 11(3), Section 11(4), Rule 9 of the Rules of 1964 - The court discussed the obligations of promoters under Section 11 of MOFA, emphasizing that the promoter must convey both land and building to the society within a stipulated time. The court interpreted the Competent Authority's powers under Section 11(4) as requiring it to issue a certificate for the conveyance of both land and building, not just the constructed area. The failure of the promoter to comply with these obligations led to the court's decision to quash the previous orders and remand the case for fresh consideration of the society's entitlement to the land and building.
Fact of the Case:
The Petitioner-Society challenged the unilateral deemed conveyance certificate issued by the Competent Authority under MOFA, claiming that the promoter failed to convey the land and building as required. The Society was registered in 2010, and the application for conveyance was made in 2019 due to the promoter's non-compliance.
Finding of the Court:
The court found that the Competent Authority had erred in issuing a certificate that only conveyed the constructed area, rather than the land and building as required by MOFA. The court emphasized the statutory obligation of the promoter to convey both within four months of the society's registration.
Issues: Whether the Competent Authority could limit the conveyance to only the constructed area despite the statutory requirements of MOFA and the obligations of the promoter.
Ratio Decidendi: The court held that the Competent Authority must convey both the land and building as per the statutory provisions of MOFA, and it cannot issue a certificate for only the constructed area when the promoter has failed to comply with its obligations.
Final Decision: The court quashed the order of the Competent Authority and the subsequent deeds, remanding the matter for fresh consideration regarding the conveyance of both land and building to the Petitioner-Society.
Based on the provided legal document, the following key points are evident:
The statutory obligation under Section 11 of MOFA requires the promoter to convey both land and building to the society. The Competent Authority is responsible for enforcing this obligation, especially when the promoter fails to comply (!) (!) .
The order issued by the Competent Authority, which conveyed only the constructed area instead of both land and building, was found to be legally unsustainable. The authority's powers under Section 11(4) of MOFA are limited to issuing a certificate for the conveyance of the land and building, not just the constructed structure (!) (!) .
The court emphasized that the conveyance must include the land and the building together, in accordance with the statutory provisions and the covenants in the flat purchaser agreements. Conveying only the structure violates the statutory scheme (!) (!) .
The agreements between the promoter and the flat purchasers specify that the conveyance of land and structure should occur after full development of the entire layout. However, the statutory obligation is to convey the land and building within a stipulated period, regardless of the layout's completion (!) (!) .
The order of the Competent Authority, which restricted conveyance to only the constructed structure, was set aside. The court remanded the matter for a fresh decision, directing the authority to issue a certificate that includes both land and building, as mandated by law (!) (!) .
The execution of deeds based on the earlier order was also quashed, and the case was remanded for a proper assessment of the society's entitlement to the land and building (!) (!) .
The principles of estoppel and acceptance of the order by the society do not bar the challenge, as the statutory provisions grant the society the right to the conveyance of both land and building, and the order was found to be in violation of these provisions (!) (!) .
The court highlighted that the delay in challenging the order does not prejudice the society's rights, especially since the order violated statutory obligations and the society acted upon the conveyance under protest (!) (!) .
The court directed that the application be reconsidered afresh by the Competent Authority, ensuring that the statutory mandate to convey both land and building is fulfilled (!) .
The writ petition was allowed, the previous orders and deeds were set aside, and the matter was remanded for proper adjudication in line with the statutory requirements (!) .
These points collectively underscore the importance of adhering to the statutory obligation under MOFA to convey both land and building, and the court's role in ensuring enforcement of these provisions when the promoter or authority fails to do so.
JUDGMENT
Sharmila U. Deshmukh, J. - Rule. Rule made returnable forthwith and heard finally with the consent of parties.
CHALLENGE IN THE PETITION:
2. Exception is taken to the certificate of unilateral deemed conveyance issued by the District Deputy Registrar, Co-operative Societies and Competent Authority under the provisions of Section 11 of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). By the impugned Order and Certificate, the Society is granted unilateral deemed conveyance of the constructed area being 3461.43 sq. mtrs.
FACTUAL MATRIX:
3. From the record the facts which are required to be exposited are that the Petitioner-Society is constructed on Final Plot No.412, situated at Eastern Express Highway Village, Panchpakadi, Taluka and District: Thane. The predecessor in title of Respondent No.10 was the owner of larger lands bearing Final Plot Nos.410 and 412 of TPS I Thane admeasuring 21210.51 square meters. Phase wise development of the larger lands was proposed and the development rights were entrusted by Respondent No.10 to Respondent No.15, who in turn assigned development rights in respect of portion of the larger land to the Respondent No.3. The Petitioner-Society is one such construction by the Respondent No.3 under the development rights assigned by the Respondent No.15. There are other structures erected by the Respondent No.15 on other portions of the larger land. It appears that the development is proposed on the larger land which is a multi building layout.
4. The Respondent No.3 who was assigned development rights in respect of portion of the property executed individual Agreements with the Flat Purchasers for sale of residential flats under Section 4 of MOFA in A-1 Wing of the proposed building known as 'Prestige Garden'. The Agreements describe the portion of the larger land being developed by Respondent No.15 as Property No I and the portion being developed by Respondent No.3 as Property No II. The Petitioner-Society is constructed on Property No II consisting of ground floor, stilt area and covered stilt parking 8 number plus 7 shops and upper 12 floor, open space parking area etc having 57 flats and 7 shops.
PROCEEDINGS BEFORE THE COMPETENT AUTHORITY:
5. Application was preferred by the Petitioner-Society under Section 11(3) of MOFA on 7th November, 2019 seeking issuance of certificate of unilateral conveyance of land admeasuring 1490.89 sq. mtrs alongwith the building constructed thereon based on architect's certificate dated 16th October 2018. Alongwith the owners of property, the developers as well as the other co-operative societies situated on the larger land were arrayed as Respondents. It was contended that the Society was registered in the year 2010 and there was failure to convey the land and building for about eight years.
Legal notice dated 22nd October, 2018 came to be issued to the Respondent owners as well as the developer calling upon them to convey the land and building to the Society, which was not complied with. Resultantly, the application was filed under Section 11(3) of MOFA. The Architect's certificate annexed to the application gives the statement of plot area, the FSI and tenement thus:
Building No.A1 'Prestige Garden A 1 CHSL' in layout of plot No. 412 Town Planning Scheme No. 1, Eastern Express Highway, Thane (W) has been developed and constructed by M/s. Nitin Casting Ltd.
RESPONSE OF THE RESPONDENT NO.3 AND RESPONDENT NO. 10:
6. The stand of the Respondent Nos.3 and 10 while opposing the application was more or less common. Referring to the various clauses of the Agreement for sale executed with the individual flat purchasers, it was contended that the land is to be conveyed to the Apex Society after the full development of the larger land. Placing reliance on the provisions of Real Estate (Regulation & Development) Act, 2016, it was contended that in case of development of multiple bu
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The Competent Authority must comply with statutory obligations and government guidelines when issuing deemed conveyance certificates, ensuring proper measurement and entitlement assessment.
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 court affirmed that deemed conveyance can be granted under Section 11 of the Act even without an occupancy certificate, provided a self-declaration is submitted, preventing promoters from benefit....
The promoter is legally obligated to convey the entire leased land to the Society as per the agreement, regardless of FSI utilization.
The Competent Authority under MOFA cannot include rights not recognized in agreements executed under Section 4 in a unilateral deemed conveyance certificate.
The court established that under Section 11 of MOFA, a promoter must convey the entire leased land as per the agreement, regardless of FSI utilization.
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