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HIGH COURT OF BOMBAY
G.S.Patel, J
GULMOHAR LOKMILAN CO-OPERATIVE HOUSING SOCIETY LIMITED AND ANR. – Appellant
Versus
THE COMPETENT AUTHORITY AND ORS. – Respondent
WP/295/2015
Certainly. Based on the provided legal document, here are the key points summarized:
The case concerns the applicability of Section 11 of MOFA to multi-structure layout developments, emphasizing that flat purchasers are entitled to conveyance of their flats and common areas upon completion of the entire layout (!) (!) .
The court examined the statutory framework, noting that Section 11 was originally intended for single plot developments, but modern large layout developments involve phased construction across multiple plots and structures, complicating statutory interpretation (!) (!) (!) (!) (!) (!) (!) (!) .
In multi-structure developments, the maximum permissible built-up area (FSI) is pooled across the entire layout, and individual structures may consume varying amounts of FSI, often not tied to specific plots, which raises questions about the scope of conveyance rights and the subject matter of deemed conveyance (!) (!) (!) (!) .
There is statutory ambiguity regarding what exactly should be conveyed—whether it is the entire layout, specific plots, or portions thereof—especially when development is phased and ongoing, and when development regulations change during the process (!) (!) (!) .
The case involves disputes over the scope of conveyance rights for large layout developments, specifically whether flat purchasers are entitled to conveyance of the land beneath their flats, their share in common areas, and whether partial conveyances are permissible (!) (!) (!) .
The court recognized that flat purchasers' ownership rights include the flat, associated land, and undivided interests in common areas, and that conveyance of these rights is essential for marketability and value of the property (!) .
The court highlighted recent statutory developments and government resolutions that clarify the process of deemed conveyance, including procedures for partial conveyances based on phased development and completed structures (!) (!) .
The court emphasized that conveyances must be based on objective, measurable criteria such as the footprint area, FSI consumed, and proportionate land share, and that the conveyance should include land, buildings, and common amenities, with title to common areas often vesting in a federation or apex society (!) (!) (!) (!) .
The importance of timely conveyance was underlined, with the understanding that flat purchasers are entitled to a transfer of title once their flats are completed and occupancy or completion certificates are issued, even if the entire development is not yet finished (!) (!) (!) .
The recent government resolution provides a structured process for deemed conveyance, including provisions for phased development, partial conveyances, and procedures for disputes, reinforcing that conveyance rights are applicable to completed structures and their land, not necessarily the entire layout (!) (!) .
The courts have taken a position that applications for deemed conveyance should be decided on their own merits, considering the specific facts and compliance with statutory and procedural requirements, and that previous orders or incomplete applications should not be binding (!) (!) .
Overall, the legal framework supports the entitlement of flat owners in large, phased layout developments to conveyance of their flats, the land beneath, and their share in common amenities, subject to objective criteria and statutory procedures, with recent resolutions facilitating partial and phased conveyances (!) (!) .
Please let me know if you need further clarification or specific legal advice regarding this case.
JUDGMENT:
CONTENTS A. OVERVIEW OF THE ISSUES INVOLVED................................5 B. THE FACTS IN THE MARATHON WRIT PETITION.......................................................................13 C. MARATHON ERA’S SUBMISSIONS......................................23 D. SUBMISSIONS ON BEHALF OF THE CONTESTING RESPONDENT...............................................32 E. THE NEED FOR A CONVEYANCE EVEN BEFORE COMPLETION OF THE LAYOUT DEVELOPMENT......................................................34 F. THE IMPUGNED ORDER........................................................35 G. ADDITIONAL FSI.....................................................................37 H. THE GOVERNMENT RESOLUTION OF 22ND JUNE 2018.................................................................45 I. ORDER.......................................................................................47 J. THE GULMOHAR PETITION.................................................48 (These sections are bookmarked in the soft copy/PDF)
A. OVERVIEW OF THE ISSUES INVOLVED
1. In early 2018 the first of these Writ Petitions, Writ Petition No. 180 of 2018 (“the Marathon Writ Petition”) came before me. The question raised was in regard to what is called a ‘Unilateral Deemed Conveyance’ under the Provisions of Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (“MOFA”). Soon other Writ Petitions with a similar point involved came to be tagged with the Marathon Writ Petition. The hearings continued with several interruptions unfortunately. By this time, of the original clutch of tagged or grouped Petitions, only these two remained — the Marathon Writ Petition and, from the Appellate Side is Civil Writ Petition No. 295 of 2015 (“the Gulmohar Writ Petition”). Others were segregated, Order dated 1st April 2019 in Original Side Writ Petition No. 2453 of 2018 and Order dated 12th February 2019 in Original Side Writ Petition Nos.2590 and 2591 of 2016.
2. While I deal with both Petitions on merits, having regard to the nature of submissions and arguments presented, I believe it is first necessary to address the question or questions of law that arise. I take this approach because individual facts will not affect statutory interpretation. But in order to appreciate the submissions on statute, I believe it is necessary first to broadly identify as accurately, yet as neutrally as possible, the specific problem.
3. MOFA has been held to be a type of welfare legislation, or, at any rate, one meant for the protection of flat purchasers. Among its provisions in Section 11. As we shall see, this relates entirely to a transfer of title from the ‘promoter’ to an organisation of persons who take flats. This may be a cooperative society, a company or an association of flat takers or apartment owners. The word ‘promoter’ is defined in the statute.
4. Section 11 of MOFA has what I can only describe as a statutory waterfall mechanism. It first casts a duty on the promoter to transfer title by executing a conveyance. It then prescribes the time within which this is to be done. Should he fail to do so, the Section itself allows the ultimate beneficiaries, i.e., the society, company or association to apply to a designated statutory authority to obtain this conveyance — what is called a Unilateral Deemed Conveyance. What the authority is to do on receipt of such an application is also set out. The prescribed procedure requires the authority to issue a notice and give a hearing.
5. MOFA is an Act of 1963. It began to operate in that era. Section 11 was extensively amended nearly 50 years later in 2008. On any reasonable reading of Section 11, and this is a point on which there is no dispute at all, the procedure that it contemplated applied to what is called a single plot development. More accurately, it did not specifically deal with the very different considerations that apply to what is called a ‘layout development’
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