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.

Judgment :

(SANDEEP V. MARNE, J.)

1. The Petition challenges order dated 31 March 2022 passed by the Competent Authority granting certificate of unilateral deemed conveyance of land and the building in favour of the Respondent No.3-Society.

2. I have heard Mr. Joshi, the learned counsel appearing for the Petitioner, whose main objection to the impugned order is conveyance of land and building in favour of the Society, whose building is yet to receive an occupancy certificate. He has relied upon Order passed by this Court in Janak Chimanlal Thacker & Ors. vs. Prathmesh Tower Premises Co-op. Housing Society Ltd. and others,[Order dated 15 September 2021 passed in Writ Petition No.2314 of 2021] and Judgment in Tushar Jivram Chauhan & Anr. vs. The State of Maharashtra & Ors.[Judgment dated 24 March 2015 passed in Writ Petition (Stamp) No.17637 of 2014] in support of his contention that application under section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (the Act) cannot be entertained by the Competent Authority where the building is yet to receive occupancy certificate. In alternate, Mr. Joshi would contend that it was incumbent on the part of the Respondent-Society to atleast submit an undertaking/self-declaration as per the requirement of Government Resolution dated 22 June 2018 in respect of 'B' Wing Building, which admittedly does not have occupancy certificate. He would submit that since enquiry as mandated under provisions of Section 11 of the Act has not been conducted properly, the order of deemed conveyance is liable to be set aside.

3. The Petition is opposed by Mr. Master, the learned counsel appearing for Respondent No.3-Society, who would rely upon judgment of this Court in ALJ Residency Co-operative Housing Society Ltd. vs. State of Maharashtra and others,, [ 2024 SCC OnLine Bom 3638 ]. He would submit that this Court has concluded in judgment in ALJ Residency that an order of deemed conveyance can also be passed where building of the society is yet to receive occupancy certificate. Mr. Master would submit that in any case, there is already a part occupancy certificate in respect of the building of the Society and that therefore the objection sought to be raised by the Petitioner is otherwise not tenable. He would pray for dismissal of the Petition.

4. So far as the issue of permissibility for the Competent Authority to exercise jurisdiction under Section 11 of the Act filed by collective body of flat purchasers, where the building is yet to be granted occupancy certificate is concerned, the same appears to be no longer res integra. In ALJ Residency (supra), this Court (Justice Sharmila Deshmukh) has held that in absence of an occupancy certificate, an order for deemed conveyance under provisions of Section 11 of the MOFA can be passed by the Competent Authority. This Court took note of provisions of Government Resolution dated 22 June 2018, which permits entertainment of application for deemed conveyance by the Competent Authority by submission of a self-declaration by the Society to make good the default of occupancy certificate. This Court accordingly held in paragraphs 25 to 30 of the judgment as under:

“25. The requisite accompaniments to the application for deemed conveyance as per Section 11(3) of MOFA are the true copies of the registered agreement for sale and all other relevant documents including the occupation certificate, if any. The use of the expression “if any” following the words “including the occupation certificate” occurring in Sub-Section (3) of Section 11 of the MOFA would indicate that the requirement of occupation cert