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IN THE HIGH COURT OF BOMBAY
SHARMILA U. DESHMUKH, J.
Runwal Paradise "A" Building Co-Operative Housing Society Ltd. - Appellant
Versus
District Deputy Registrar Co-Op. Societies, Pune and Ors. – Respondents
Writ Petition No. 1334 of 2021
Decided On : 04-07-2024
Certainly. Based on the provided legal document, here are the key points summarized with the corresponding references:
The Court emphasized that the Competent Authority must adhere to statutory obligations and government guidelines, particularly the Government Resolution dated 22nd June 2018, when issuing deemed conveyance certificates. This includes proper measurement of the land and assessment of entitlement (!) .
The case involved a challenge to a unilateral deemed conveyance certificate issued for a lesser area (1103.55 sq.mtrs.) than claimed (1643.79 sq.mtrs.), due to alleged non-compliance by the promoter with statutory obligations (!) (!) .
The facts revealed that the Petitioner Society is constructed on a larger land area and had entered into agreements with flat purchasers, with construction commencing in 2003 and possession handed over to flat purchasers. The Society was registered in 2006 (!) (!) .
The promoter failed to convey the land and building within the stipulated period, and the application for deemed conveyance was filed due to this non-compliance. The initial application was based on an architect’s certificate indicating the area to be conveyed (!) (!) .
The Competent Authority issued a conveyance certificate based on the revised layout sanctioned in 2017, which resulted in a lesser area being conveyed than originally claimed. The Court found this to be improper because the obligations were based on the layout at the time of agreements, not the revised plan (!) (!) .
The Court noted that the statutory scheme under Section 11 of MOFA obligates the promoter to convey land and building within a specific period, and upon failure, the authority must enforce unilateral conveyance based on the original agreements, not revised plans (!) (!) .
The Court observed that the Competent Authority did not sufficiently consider the guidelines of the Government Resolution of 22nd June 2018, which mandates that conveyance should include land necessary to support the constructed structures and proportionate common amenities. The authority failed to conduct the required measurement exercise (!) (!) .
The Court held that the order of the Competent Authority was flawed because it relied solely on the revised sanctioned plan without proper inquiry into the land area needed to sustain the construction, as per the guidelines. The order was therefore set aside and remanded for a fresh decision (!) (!) .
The Court clarified that the issue of entitlement to unutilized FSI or additional FSI is outside the jurisdiction of the Competent Authority and is subject to civil proceedings. The authority’s role is limited to enforcing the obligations under the statutory scheme and the original agreements (!) (!) .
The final order was to quash the previous order and remand the matter to the Competent Authority for a re-evaluation of the application, ensuring compliance with the government guidelines and proper measurement procedures. The application was to be decided afresh in accordance with the law (!) (!) .
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JUDGMENT :
(Sharmila U. Deshmukh, J.)
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
CHALLENGE IN THE PETITION:
2. Exception is taken to the certificate of the unilateral deemed conveyance issued by the District Deputy Registrar, Co-operative Societies, Pune City, Pune, under the provisions of Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, "MOFA") only to the extent that the grant is of area admeasuring 1103.55 sqr.mtrs. of the land as opposed to the claim of 1643.79 sqr.mtrs.
FACTUAL MATRIX :
3. The facts as discerned from the record are that the Petitioner- Society is part of layout developed on land bearing Survey No.98/1 situated at Mouje Kothrud, Pune admeasuring about 13456 square meters. The Respondent No.2 under various registered agreements dated 9th July, 2001 was granted exclusive right to construct and allot/sale flat, row-houses etc. in the buildings to be constructed on the said land and to enter into agreement with the flat purchasers and to receive the said price thereof. Pursuant thereto, the layout plan was sanctioned by the Pune Municipal Corporation vide commencement certificate dated 20th July, 2001. Subsequently the plans were revised in the year 2002, 2003 and was again revalidated in the year 2016. The construction of the Petitioner Society which is "A" Wing commenced in the year 2003 and in due course the row houses and buildings "C", "D" and "E" Wings were constructed and possession of the tenements was handed over to the respective flat purchasers. The Petitioner-Society was registered in the year 2006.
PROCEEDINGS BEFORE THE COMPETENT AUTHORITY:
4. As there was non compliance of Section 11 of MOFA by the Respondent No2, an application was preferred by the Petitioner- Society under Section 11(3) of the MOFA in the year 2016 seeking issuance of certificate of unilateral conveyance of land admeasuring 1643.79 sqr.mtrs alongwith the building standing thereon. Along with application for conveyance the Architect certificate was annexed giving the statement of the plot area and the FSI etc. which reads thus:
| “THIS IS TO CERTIFY THAT CONSTRUCTION OF BUILDING RUNWAL PARADISE A CO-OP HOUSING SOCIETY LTD. ON PLOT SITUATED AT SURVEY NO.88/1 KOTHRUD PUNE-PAUD ROAD, TALUKA HAVELI, DISTRICT PUNE THE ABOVE SAID BUILDING REVISED PLANS ARE APPROVED BY PUNE MUNICIPAL CORPORATION VIDE COMMENCEMENT CERTIFICATE NO.4001, DATED 14/01/2001. A) PLOT AREA STATEMENT OF SOGIETY | |
| i. Plot area as per, sanctioned plan. | 13456 00 Sq.m. |
| ii. Plot area as per actual site measurements | 13456 00 Sq.m. |
| iii. Less area under Road Widering | 810.00 Sq.m. |
| iv. Net area of the Plot. | 12646.00 Sq.m. |
| v. Less area under Open space 10 % | 1264.60 Sq.m. |
| vi Less area under Amenity space 15% | 1896.90 Sq.m. |
| vii. Balance area of Plot. | 9484.50. Sq.m. |
| viii. Permissible F S.I. | 10294.50 Sq.m. |
| ix. Proposed built up area of Society. | 10194 43 Sq.m. |
| x. Plinth area of the society | 3749.22 Sq.m. |
| xi. Total built up area of the society (Wing.A) | 1627.78 Sq.m. |
| xii. Open space. if any | Nil |
| xiii. Amenity space if any | Nil |
| xiv. Construction on open space if any | Nil |
| xv. If there are more than one societies on the same sanctioned pian, then proportionate area to be conveyed to society including open & amenity space. |
|
| xvi. Proportionale area to be transferred to society (Wing A)
1627.78 ………………………..…..× 10294.50 10194.22 |
1643.79 Sq.m. |
| B) F.S. I. Statement i. Allowable FSI and area in Sq.m. (Wing A.) ii. Consumed FSI and area in Sqm (Wing. A.) iii. Balance FSI and area in Sq.m. |
1643.79 Sq.m 1627.76 Sq.m. 16.01 Sq.m. |
| C) Tenements Statement i. Tenements a | |
The Competent Authority must comply with statutory obligations and government guidelines when issuing deemed conveyance certificates, ensuring proper measurement and entitlement assessment.
The promoter is legally obligated to convey the entire leased land to the Society as per the agreement, regardless of FSI utilization.
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.
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 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 main legal point established in the judgment is that the conveyance of land must be in accordance with the agreement between the parties, and a technical violation of natural justice may not warr....
Competent Authority under Section 11 MOFA must determine and grant deemed conveyance for correct subdivided area from official records, undeterred by pending civil suits on construction deviations an....
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 court affirmed that deemed conveyance can be granted without an occupancy certificate if a self-declaration is submitted, emphasizing the promoter's obligation to obtain such certificate.
The court affirmed that deemed conveyance under MOFA can apply to composite societies, despite differing member agreements, emphasizing equitable treatment and the necessity of proper procedural comp....
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