The absence of an occupation certificate does not prevent a Co-operative Housing Society from obtaining deemed conveyance, as the promoter's failure cannot disadvantage flat purchasers.

JUDGMENT :

1. Rule. With Consent, Rule made returnable forthwith and taken up for final disposal.

2. By this petition filed under Article 227 of the Constitution of India, the order dated 30th January 2017 passed by the Competent Authority – District Deputy Registrar Co-operative Societies, Mumbai in Application No.72 of 2016 filed under Section 11(3) of Maharashtra Ownership of Flats (Regulation of Promotion of Construction of sale, Management and Transfer) Act, 1963 [for short “MOFA”] dismissing the application is assailed.

3. Briefly stated, facts of the case are that the Petitioner-Society has been constructed on land bearing CTS No.C/873, C/874, C/875, C/884 and C/885 admeasuring 1284.29 sq mtrs. situated at Pali Mala Road, Pali Naka, Bandra West, Mumbai – 400 050. The subject property was owned by one Abdulla Khan Jamruddin Khan who expired on 9th December 1976. In the year 1980, an application for grant of Letters of Administration was allowed by the High Court and the Respondent No. 3 was granted Letters of Administration to administer the estate of Late Abdulla Khan Jamruddin Khan. On 19th March 1993, an agreement came to be executed between the Respondent No.3–Administrator, with the consent of other legal heirs, and the Respondent No.22– Developer for the purchase and development of subject property. Intimation of Disapproval [IoD] was issued by the planning authority on 4th August 1994 and the commencement certificate was issued on 2nd April 1998. Subsequently, the Petitioner-Society came to be constructed and the Respondent No.22 entered into MOFA agreements with the flat purchasers and the flat purchasers have taken possession of their individual flats.

4. Alleging non compliance of Section 11 of MOFA, an application came to be filed by the Petitioner-Society before the Competent Authority on 8th May 2015 for grant of certificate entitling the Petitioner-Society for execution of unilateral deemed conveyance. The said application was opposed by the legal heirs of deceased owner. Vide order dated 30th January 2017, the Competent Authority rejected the application for deemed conveyance, which is under challenge in the present petition.

5. Mr. Khandeparkar, learned counsel appearing for the Petitioner would submit that the application came to be rejected for the reasons that the copy of agreement for sale was not annexed to the said application and only the Permanent Alternate Accommodation Agreement [for short “the PAAA”] was annexed, the copy of occupation certificate and commencement certificate was not annexed, that the Architect’s certificate produced on record states that upper two illegal floors are to be demolished and MCGM by letter dated 4th July 2008 has proposed demolition, there is discrepancy about the CTS numbers as the approved lay-out refers to three CTS numbers and applications mentions five CTS numbers, and there is pending litigation. He submits that as far as the rejection of application on the ground that the application was defective as not being accompanied by the requisite documents is concerned, the provisions of Rule 13 of Maharashtra Ownership of Flats (Regulation of Promotion of Construction etc) Rules, 1964 [for short “the Rules of 1964”] provides for scrutiny of an application and issuance of notice to the parties only upon satisfaction that the application is complete in all respect. He submits that once notice has been issued, the same implies that the application is complete in all respects and thereafter it is not open for the Competent Authority to reject the application on the said ground. Even otherwise by pointing out various clauses, he submits that the PAAA agreement was in fact MOFA agreement. He submits that the commencement certificate was produced on record which has not been noticed by the Competent Authority. As far as non obtaining of occupancy certificate is concerned, he submits that the Competent Authority while adjudicating an application under Section 11 of MOFA is not