Oral Judgment:

MEGHA SHREEDHAR PARAB

1) Petition challenges order dated 24 November 2023 Digitally signed by MEGHA SHREEDHAR PARAB D 14a :t 3e 0: :2 50 22 +5. 00 54 3.0 02 passed by the Competent Authority and District Deputy Registrar, Co-operative Societies, Pune City, Pune granting certificate of Unilateral Deemed Conveyance of land admeasuring 4913.17 sq.mts. together with construction admeasuring 3239.06 sq.mtrs. out of total land of 6500 sq.mts in favour of Respondent No.2-society.

2) I have heard Mr. Sugandh Deshmukh, the learned counsel appearing for the Petitioners, Mr. Dani, the learned senior advocate appearing for Respondent No.2 Society, Mr. Mulla, the learned AGP for Respondent -State, Mr. Tejas Deshmukh, the learned counsel appearing for Respondent No.3 and Mr. Kale, the learned counsel appearing for Respondent No.4.

3) The main contention raised by Mr. Sugandh Deshmukh is that the construction has been caused by Respondent No.3-developer in gross violation of development permission issued by the Planning Authority. It appears that the Assistant Director of Town Planning, Pune had sanctioned the layout of land admeasuring 6500 sq.mt, in which construction of 48 flats was approved. It however appears that Respondent No.3- developer constructed total 85 units in the building comprising of 70 residential flats and 15 shops. It is contended on behalf of the Petitioners that one of the terms and conditions of development agreement executed between Petitioner landowners and Respondent No.3-developer was that construction would be caused strictly in accordance with the development permission granted by the Planning Authority. It is contended that Petitioners have repeatedly complained in respect of the unauthorised construction caused by Respondent No.3-developer in violation of the development permission. It appears that Petitioners had petitioned this Court for seeking action in respect of the unauthorised construction and order dated 27 January 2016 was passed in Writ Petition No.5215 of 2013 directing the Pune Municipal Corporation to demolish the three floors above the authorised four floors without causing any damage to the authorised four floors. It appears that accordingly the flats constructed on 5th, 6th and 7th floors of the building have been punctured by the Municipal Corporation. The Competent Authority has recorded a finding that after puncturing of flats constructed on 5^th, 6^th and 7^th construction has been rendered unsafe and a report to that effect has been issued by the structural auditor on 18 April 2022. Thus, there is no dispute to the position that unauthorised construction has been caused by Respondent No.3-developer on the land concerned, development rights in respect of which were granted by Petitioner-land owners.

4) The issue for consideration is whether the original landowners can deny conveyance of land to the collective body formed by the flat purchasers only on the ground that development carried out by developer was not in accordance with the development permission.

5) In ALJ residency Co-operative Housing Society Ltd. Vs. State of Maharashtra and Ors.¹ this Court had an occasion to deal with the issue as to whether the Competent Authority can exercise jurisdiction under Section 11 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963 (MOFA) to grant certificate of unilateral deemed conveyance in respect of a building, which is yet to be issued occupation certificate. This Court referred to the provisions of Government Resolution dated 22 June 2018, which permits conveyance of land and building in favour of Society, whose building is yet to be issued occupation certificate upon submission of a self-declaration by the society accepting all responsibilities and liability regarding the building and to make an application to the Planning Authority for issuance of occupation certificate. The ju