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.

JUDGMENT :

[SANDEEP V. MARNE, J.]

1) The petition challenges the order dated 24 August 2023 passed by the Competent Authority and District Deputy Registrar granting unilateral deemed conveyance of land admeasuring 3832.30 sq. mtrs. in favour of the Petitioner-Society. The certificate of unilateral deemed conveyance is challenged to the extent that he does not convey the entire land admeasuring 8647.80 sq. mtrs in favour of the Petitioner-Society.

2) Briefly stated, facts of the case are that Respondent No.2- M/s. Nandu Builders, a partnership firm secured lease of land admeasuring 8647.80 sq. mtrs vide Indenture dated 22 September 1972 from lessor-Vrajlal Damodar Mehta. Respondent No.2-Promoter proposed to construct 30 industrial units as per plans, designs and specifications on the said leased land for sale on ownership basis to purchasers. Accordingly, Respondent No.2 entered into Agreements for Sale with various unit purchasers. In the said Agreements, Respondent No.2 agreed to execute assignment of lease of the land in favour of the Co-operative Society formed by the unit purchasers. It appears that the unit purchasers formed and registered the Petitioner-Society on 19 January 1976 under Section 10 of the Maharashtra Ownership of Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (MOFA). The Society filed an application under Section 11 of MOFA for grant of unilateral deemed conveyance in respect of the entire leased land admeasuring 9356.60 sq.mtrs bearing Plot No.1, CTS No.186(A), Village-Tungawa, Survey No.9 (pt), 5 (part) Taluka-Kurla, Mumbai Suburban District. The Society’s application was opposed by Respondent No.2 initially on the ground that the land could not be conveyed as the same was merely leased to it. The Competent Authority proceeded to allow Society’s application for deemed conveyance by order dated 24 August 2023 and held that the Petitioner-Society is entitled to get unilateral deemed conveyance of lease of land admeasuring only 3832.30 sq. mtrs. The Competent Authority excluded the balance portion of the land on the ground that FSI of 0.57 was utilised in respect of only 3832.30 sq. mtrs for construction of Society’s building. The Competent Authority also deducted the area of recreational ground and internal roads and directed conveyance of lease of land admeasuring only 3832.30 sq.mtrs. The Petitioner-Society is aggrieved by the decision of the Competent Authority to the extent of not conveying the entire leased land in its favour and has accordingly filed the present petition.

3) Mr. Thorat, the learned counsel appearing for the Petitioner-Society would submit that the Competent Authority has grossly erred in not granting conveyance in respect of the entire leased land in accordance with the covenants of the Agreement executed with the unit purchasers. He would take me through various covenants of unit purchase agreements to demonstrate that Respondent No.2- Promoter had specifically agreed to assign the entire lease in favour of the Society formed by the unit purchasers. That under the Agreement, Respondent No.2 did not carve out any portion of land for being excluded from conveyance in favour of Petitioner-Society. That therefore Respondent No.2 is under obligation to convey his right, title and interest in the entire leased land in favour of the Society.

4) Mr. Thorat would further invite my attention to the contents of the Reply filed by Respondent No.2 as recorded by the Competent Authority in support of his contention that Respondent No.2 never raised the issue of carving out any portion of land in the Agreement for being excluded in the conveyance. That on the other hand, Respondent No.2 specifically agreed to assign the entire lease in favour of the Petitioner-Society. He would therefore submit that the Competent Authority has grossly erred in deciding the issue which was not even raised by Respondent No.2. He would submit that construction of the building