The court clarified that Section 11 of MOFA applies to layout developments, emphasizing the need for specific conveyance rights for flat purchasers while ensuring compliance with statutory obligations.

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’