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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MILIND N.JADHAV
Erle Benedict Pereira – Appellant
Versus
Erlyn Apartment cooperative housing society limited – Respondent
| Table of Content |
|---|
| 1. entitlement to fsi under the deed of conveyance. (Para 2 , 3) |
| 2. plaintiff's claims supported by covenants in the deed of conveyance. (Para 4) |
| 3. defendant society's objection based on mofa. (Para 5) |
| 4. court recognizes plaintiff's right under direct covenants. (Para 6 , 7 , 8 , 9 , 10 , 12) |
| 5. court's recognition of the society's malafide intent. (Para 20 , 24) |
JUDGMENT :
MILIND N. JADHAV, J.
1. Heard Mr. Tamboly, learned Advocate for Applicant / Plaintiff and Mr. Wassoodew, learned Advocate for Defendant/Respondent.
2. Interim Application is filed by Applicant / Plaintiff. Suit is filed seeking declaration for extra FSI / additional area in respect of Plaintiff's entitlement under the registered Deed of Conveyance dated 27.09.1994 executed between Mr. Alexander Benedict Joseph Pereira (ABJ Pereira) and predecessor-in-title of Plaintiff and Defendant Society. Pleadings are completed in the Interim Application. By consent, Interim Application is heard for interim reliefs.
3. Briefly stated Mr. ABJ Pereira was the owner of a plot of land bearing CTS No. C/257 (part) and C/258 (part) of Bandra being Municipal Ward No.II-E-1405-2 admeasuring approximately 1160 sq. yards situ
A covenant in a Deed of Conveyance runs with the land and binds successor parties, holding statutory presumption of validity unless specifically challenged.
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 must only cover completed areas of a property, reserving rights of the developer for ongoing and future construction under applicable law.
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....
Disputes over excess area or title in deemed conveyance orders under MOFA Section 11(3) are for civil courts, not writ jurisdiction; promoters cannot retain land via private clauses against statutory....
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....
Landowner granting limited FSI/TDR rights to independent developer, reserving balance acknowledged by purchasers, not 'promoter' under MOFA; cannot be injuncted from using reserved rights; bare injun....
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....
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