The court upheld the unilateral deemed conveyance of land to the society, affirming that prior agreements do not negate the obligation to convey land under Section 11 of MOFA.

JUDGMENT:-

1) By this Petition, the Petitioner challenges Order dated 15 November 2022 as well as Corrigendum dated 20 December 2022 passed by District Deputy Registrar, Co-operative Societies, Mumbai (2) Eastern Suburbs, Mumbai and Competent Authority granting unilateral deemed conveyance of land admeasuring 1137.56 sq. mtrs. in favour of Respondent No.3-Society.

2) Briefly stated, facts of the case are that one Dattatraya Khanderav Ladewar was the owner in respect of land bearing CTS Nos. 866, 866/1 to 866/13, village Mulund, District Mumbai Suburban. Said Dattatraya Khanderao Ladewar entered into an Agreement for Sale dated 21 August 1978 and agreed to assign his right, title and interest in the said land in favour of the Petitioner. It appears that Respondent No.10-Dharma Builders in whose favor the Indenture of Lease dated 16 May 1975 was executed by said Dattatraya Khanderao Ladewar also executed the Agreement dated 23 August 1978 in favor of the Petitioner to transfer the lease its favor. Petitioner got the building plans sanctioned from the Municipal Corporation of Greater Mumbai (MCGM) for the construction of a building consisting of ground and six upper floors (5 Shops and 18 Flats). An Intimation of Disapproval was issued by the Municipal Corporation on 12 February 1979. Petitioner entered into various Agreements for Sale with the purchasers of flats and shops. Respondent No.3-Society was formed by such purchasers of flats and shop. The society filed an application dated 7 February 2022 before the Competent Authority under provisions of Section 11 (3) of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) seeking a certificate of unilateral deemed conveyance of land admeasuring 1274.57 sq. mtrs including protected proportionate road set back area admeasuring 65.03 sq. mtrs. out of the total land. The application was opposed by Petitioner by filing a reply. Petitioner took a defence inter-alia that as per Agreements executed with flat purchasers, only a lease in respect of constructed structure (building) for a period 999 years could be granted in favour of the society and that Petitioner shall continue to remain owner in respect of the entire land.

3) It appears that during pendency of the proceedings, the Competent Authority called for a technical report of its empaneled Architect vide letter dated 23 September 2022. The Architect submitted the report vide Certificate dated 21 October 2022 concluding that the area of land to be conveyed to the society could only be 1137.56 sq. mtrs. Based on the Architect’s Certificate, the Competent Authority passed an Order dated 15 November 2022 conveying land admeasuring 1137.56 sq. mtrs. in favor of the Society. The Corrigendum dated 20 December 2022 has been issued only for the purpose of recording the correct number of members of Respondent No.3-Society as 24 instead of 21. Petitioner is aggrieved by Order dated 15 November 2022 and Corrigendum dated 20 December 2022 and has filed the present Petition.

4) Mr. Garewal, the learned counsel appearing for Petitioner would submit that the Competent Authority has erred in granting the conveyance of land on an ownership basis in favour of the society. He would submit that the Competent Authority does not have jurisdiction to convey something which is not provided for in the Agreements executed with the flat purchasers. He would invite my attention to clause 29 of one of the Agreements executed with the flat purchaser, under which the parties had agreed that only a lease in respect of the building for a term of 999 years would be executed in favour of the society. That clause 29 specifically provides that the entire land shall belong to Petitioner exclusively. He would submit that the agreements with the flat purchasers have been executed before the introduction of Form V under Rule 5 of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construc