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2024 Supreme(Bom) 571

SHARMILA U. DESHMUKH
Garden A-1 Chsl – Appellant
Versus
State of Maharashtra – Respondent


Advocates appeared:
Mr. Harjot Singh i/b Raval Shah & Co., for the petitioner., Ms. Madhubala Kajle, B panel Counsel and Ms. Vrishali Raje, AGP for the respondent-State., Mr. Rohan Cama and Kyus Modi i/b Nitin Deshmukh for respondent no. 3., Mr. Prasad Dhakephalkar, Senior Advocate along with Mr. Vikramjit Garewal, Dipesh Yadav i/b Narayan and Narayan for respondent no. 10.

Judgement Key Points

Based on the provided legal document, the following key points are evident:

  1. 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 (!) (!) .

  2. 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 (!) (!) .

  3. 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 (!) (!) .

  4. 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 (!) (!) .

  5. 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 (!) (!) .

  6. 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 (!) (!) .

  7. 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 (!) (!) .

  8. 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 (!) (!) .

  9. 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 (!) .

  10. 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 po

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