Bombay High Court
Runwal Paradise A Building ... vs District Deputy Registrar Co-Op. ... on 4 July, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:26186
wp1334-21f
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1334 OF 2021
Runwal Paradise "A" Building Co-Operative ]
Housing Society Ltd., ]
Survey No.98/1, Bhusari Colony, ]
Kothrud, Pune - 29 ]
Through the Chairman Mr. Sanjay Kulkarni ]
And through the Treasure Mr. Parag Tikle ] ... Petitioner.
Versus
1. District Deputy Registrar Co-Op. ]
Societies, Pune City, Pune ]
2. Runwal Realtors Private Ltd. ]
Office: 1st Floor, Runwal Raisoni Plaza ]
42/13, Erandvana Karve Road, ]
Pune 411 004 ]
3. M/s. Agasti Corporation ]
Office: 5, Krushnkuj, 64/31, ]
Arandvana Pune ]
Through Shri Navnath Bhaurav Avhad ]
R/o. Flat No.2, Fountain Head ]
Survey No.15/2, Kothrud, ]
Pune 411 029 ]
4. Narang Sancheti & Associates ]
Office 47/2, Sankala Arcade, Karve ]
Road, Pune - 04 ]
Through ]
(a) Shri Girish Navnath Avhad ]
(b) Sau. Usha Navnath Avhad ]
R/o.(a) and (b) at Surekh Bldg., ]
1117, University Road, ]
Pune - 411 016 ]
sa_mandawgad 1 of 23
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(c) Sau. Lalvanti Mohanlal Narang ]
(d) Shri Nandlal Mohanlal Narang ]
R/o. (c) and (d) at: Continental ]
Chamber, Karve Road, ]
Pune 411 004 ]
(e) Sau. Vimlabai Dhanraj Sancheti ]
(f) Sau. Jayashridevi Virendrakumar Sancheti ]
(g) Sau. Smita Vinodkumar Sancheti ]
(h) Shri Vinodkumar Dhanraj Sancheti ]
R/o.(e) to (h) Gultekdi, ]
Pune 411 037 ]
4. Nisar Mohammed Ramzan ]
5. Jubedabai Abdul Rashid ]
6. Suleman Nazir Mohammed ]
(since deceased through his L.R.s. ]
(a) Sharif Hasan Ramzan ]
(b) Mohammed Yusuf Ramzan ]
(c) Nisar Ahmed Ramzan ]
(d) Niyada Ahmed Ramzan ]
R/o.4 to 6 and L.R.S. 9 ]
Baglapur, tal: Bhiwandi ]
Dist.Thane ] ... Respondents.
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Mr. Chaitanya Nikte a/w Mr. Ritvij A. Kale, Mr. Prajit Sahane, for the Petitioner.
Ms. Priyanka B. Chavan, AGP for the Respondent-State.
Mr. Sachin Mandlik a/w. Ms. Sayali Phansikar i/by Mandlik and Partners for
Respondent No.2.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : June 19, 2024
Pronounced on : July 04, 2024
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JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with the consent of the parties.
CHALLENGE IN THE PETITION:
2. Exception is taken to the certificate of the unilateral deemed conveyance issued by the District Deputy Registrar, Co-operative Societies, Pune City, Pune, under the provisions of Section 11 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, "MOFA") only to the extent that the grant is of area admeasuring 1103.55 sqr.mtrs. of the land as opposed to the claim of 1643.79 sqr.mtrs.
FACTUAL MATRIX :
3. The facts as discerned from the record are that the Petitioner- Society is part of layout developed on land bearing Survey No.98/1 situated at Mauje Kothrud, Pune admeasuring about 13456 square meters. The Respondent No.2 under various registered agreements dated 9th July, 2001 was granted exclusive right to construct and allot/sale flat, row-houses etc. in the buildings to be constructed on the said land and to enter into agreement with the flat purchasers and to receive the said price thereof. Pursuant thereto, the layout plan 3 of 23 wp1334-21f was sanctioned by the Pune Municipal Corporation vide commencement certificate dated 20th July, 2001. Subsequently the plans were revised in the year 2002, 2003 and was again revalidated in the year 2016. The construction of the Petitioner Society which is "A" Wing commenced in the year 2003 and in due course the row houses and buildings "C", "D" and "E" Wings were constructed and possession of the tenements was handed over to the respective flat purchasers. The Petitioner-Society was registered in the year 2006. PROCEEDINGS BEFORE THE COMPETENT AUTHORITY:
4. As there was non compliance of Section 11 of MOFA by the Respondent No2, an application was preferred by the Petitioner- Society under Section 11(3) of the MOFA in the year 2016 seeking issuance of certificate of unilateral conveyance of land admeasuring 1643.79 sqr.mtrs alongwith the building standing thereon. Along with application for conveyance the Architect certificate was annexed giving the statement of the plot area and the FSI etc. which reads thus:
"THIS IS TO CERTIFY THAT CONSTRUCTION OF BUILDING RUNWAL PARADISE A CO-OP HOUSING SOCIETY LTD. ON PLOT SITUATED AT SURVEY NO.88/1 KOTHRUD PUNE-PAUD ROAD, TALUKA HAVELI, DISTRICT PUNE THE ABOVE SAID BUILDING REVISED PLANS ARE APPROVED BY PUNE MUNICIPAL CORPORATION VIDE COMMENCEMENT CERTIFICATE NO.4001, DATED 14/01/2001.
A) PLOT AREA STATEMENT OF SOGIETY i. Plot area as per, sanctioned plan. 13456 00 Sq.m.
ii. Plot area as per actual site measurements 13456 00 Sq.m.
4 of 23 wp1334-21f iii. Less area under Road Widering 810.00 Sq.m.
iv. Net area of the Plot. 12646.00 Sq.m.
v. Less area under Open space 10 % 1264.60 Sq.m.
vi Less area under Amenity space 15% 1896.90 Sq.m.
vii. Balance area of Plot. 9484.50. Sq.m.
viii. Permissible F S.I. 10294.50 Sq.m.
ix. Proposed built up area of Society. 10194 43 Sq.m.
x. Plinth area of the society 3749.22 Sq.m.
xi. Total built up area of the society (Wing.A) 1627.78 Sq.m.
xii. Open space. if any Nil
xiii. Amenity space if any Nil
xiv. Construction on open space if any Nil
xv. If there are more than one societies on the same sanctioned pian, then proportionate area to be conveyed to society including open & amenity space. xvi. Proportionale area to be transferred to society (Wing A) 1627.78
-------------- × 10294.50 10194.22 1643.79 Sq.m.
B) F.S. I. Statement i. Allowable FSI and area in Sq.m. (Wing A.) 1643.79 Sq.m. ii. Consumed FSI and area in Sqm (Wing. A.) 1627.76 Sq.m. iii. Balance FSI and area in Sq.m. 16.01 Sq.m.
C) Tenements Statement
i. Tenements as per sanctioned plan,(Wing A.), 31 Nos.
ii. Tenements at actual. (Wing.A.) 31 Nos.
iii. Tenements as per completion certificate: Nil."
5. The application came to be resisted by the Respondent No.2 contending that as per the layout the area of the total land was 13,456 sqr.mtrs and the land available for construction was net area 10,294.50 sqr.mtrs. with total available FSI for construction being 10,193.28 sqr.mtrs. as per the layout. The table of the FSI consumed by the super structures on the larger land was set out. As far as Petitioner is concerned, it was contended that the Petitioner-Society had consumed FSI of 1627.78 sqr.mtrs (Area constructed). It was contended that the total FSI consumed was 9735.30 sqr.mtrs. and the 5 of 23 wp1334-21f FSI which remain to be utilised was 457.98 sqr.mtrs. as per the old layout. It was further contended that as per the revised layout sanctioned by Pune Municipal Corporation on 13 th January, 2017, the total permissible FSI was 16031.70 sqr.mtrs and thus the balance unutilised FSI was 6296.67 sqr.mtrs and the Respondent No.2 claimed right in the said unutilised FSI. The Respondent No.2 expressed its willingness to execute the conveyance in the name of the Petitioner- Society of an area of 1627.78 sqr.mtrs. along with the proportionate land in the open space only.
IMPUGNED ORDER DATED 26TH MAY, 2017:
6. The relevant conclusions arrived at by the Competent Authority appointed under Section 5A of MOFA can be broadly summarized as under:
(a) Petitioner is duly registered Society comprising of 31 residential flats as per the sanctioned plan.
(b) Respondent No.1 has committed default in complying with its obligation to convey the land and building in according with Rule 9.
(c ) As per revised layout sanctioned on 13th January, 2017, it will be appropriate to convey to the Petitioner land admeasuring 1103.55 square meters and 1627.78 square meters built up area alongwith proportionate share in the open space, internal roads and club house.
(d) As Sale Deeds have been executed in respect of the Row Houses, their area of 1628.08 square meters should be 6 of 23 wp1334-21f reduced from the larger land and proportionate area to be conveyed to the Petitioner Society.
(e) The dispute regarding the balance unutilised FSI is not within the jurisdiction of the Competent Authority.
(f) Petitioner Society should not cause any obstruction to the Respondent No.1 from carrying out balance construction on the remaining plot.
7. Accordingly, Certificate came to be issued by the Competent Authority entitling the Petitioner-society to deemed conveyance of area admeasuring 1103.55 sqr.mtrs. alongwith constructed area admeasuring1627.78 sqr.mtrs. with undivided proportionate share in the open spaces etc. SUBMISSIONS:
8. Mr.Nikte, learned counsel appearing for the Petitioner has taken this Court through the record and proceedings and would submit that in 2016, after filing of application for deemed conveyance the revised layout was sanctioned in the year 2017. He submits that as per the revised layout, FSI is sought to be loaded on other buildings in the layout and by reason thereof, the Competent Authority has granted a deemed conveyance of a lesser area. He submits that the Competent Authority has looked into the revised layout of the year 2017, whereas the obligations to be conveyed by the promoter were as on the date of execution of the flat purchasers agreements. He submits that the Petitioner-Society has filed Regular Civil Suit No.1215 of 2019 7 of 23 wp1334-21f challenging the revalidation of the building plan by commencement certificate dated 13th January, 2017, which is pending. He submits that without the consent of the Petitioner-Society there can be no revision of the layout under Section 7 and 7A of the MOFA. He has taken this Court to the various clauses of the sale agreement with the flat purchasers and would submit that the promoter was under an obligation to form an association of apartment owners and to convey the land and the building within the period of two years. He submits that as per 2006 layout, the entire FSI was consumed. He submits that it is an admitted position in the reply of the Respondent No.2 that as per the old layout the remaining FSI was 457.98 sq.mtrs. and as per the new layout the promoter is now seeking to utilize the balance FSI of 6296.67 sqr.mtrs. which is not the property of the developer. He submits that the Competent Authority was mandated by law to convey the land and building as per the layout of the year 2001 and not as per the revised layout of 2017.
9. Per contra, Mr. Mandlik, learned counsel for the Respondent No.2 would submit that the Architect's certificate which is being relied upon by the Petitioner does not give the correct constructed area. He submits that the Architect's certificate provides for the proposed built-up area of the Society at 10,192.43 sqr.mtrs. and by considering the same has certified that the proportionate area to be transferred to the Society as 1643.79 sqr.mtrs. He submits that as per the said 8 of 23 wp1334-21f certificate, the total built-up area of the society is 1627.78 sqr.mtrs. He would further submit that the proportionate area includes the open spaces and the amenity space for arriving of the figure 1643.79 sqr.mtrs. He submits that a civil suit is already pending challenging the revised layout and the issue can therefore be decided in the Civil Court. He would further submit that if the relief sought for by the Petitioner is granted then the same would result into an imbalance of the FSI necessitating the impleading of the other societies situated on the said plot. He submits that this Court may not interfere under Article 227 in the findings of the Competent Authority which is based on the revised layout.
10. In rejoinder, Mr. Nikte submits that by virtue of grant of deemed conveyance, the right, title and interest in the said property is not concluded as has been held by various decisions. Drawing support from decision of this Court in the case of Acme Enterprises and others vs. Deputy Registrar, Co-operative Societies and Others [2023 SCC OnLine Bom 1102], he submits that the Competent Authority cannot convey more than what the promoter has agreed to conveyed under the agreement executed under Section 4 and that it is the promoters obligation which the Competent Authority is required to be fulfilled, which in this case would be according to the flat purchasers agreement of 2002 and the deemed conveyance cannot be granted on the basis of revised sanctioned plan of the year 2017. He 9 of 23 wp1334-21f would further rely upon the decision in the case of Noopur Developers vs. Himanshu V. Ganatra and Ors. [2010 (7) Mh.L.J. 694] and would submit that in that case the issue was as regards provisions of Section 7 and 7A of the MOFA, and it has been held that whether or not the society has formed, the FSI must vest in the society if the time to form the society statutorily fixed under Rule 9 has expired. He further submits that in that case the learned Single Judge has held that if the building is to be put up as a Wing the permission of the society would be required. He submits that it is therefore clear that the revised plan could not have been submitted by the Respondent No.1 without the consent of the Petitioner-Society and thus, even the Competent Authority could not have been taken the same into consideration.
REASONS AND ANALYSIS :
11. It appears from the record that the Petitioner-Society is constructed on a larger land on which row-houses and other buildings are constructed and possession thereof has been delivered to the respective flat purchasers. The entire larger land admeasures about 13,456 sqr.mtrs. and by virtue of registered development agreement, the Respondent No.1 was granted right to construct and allot the flats/row-houses etc. and to enter into agreements with the flat purchasers. Pursuant thereto, development rights were exercised by
10 of 23 wp1334-21f the Respondent No.2, who then executed flat purchasers agreements with the individual flat purchasers of the Petitioner-society.
12. Before proceeding further, it would be profitable to take a look at the statutory scheme of Section 11 of MOFA. Section 11 of MOFA casts an obligation upon the Promoter to take all necessary steps to complete his title and convey to the organisation of person, who takes flats, which are registered either as cooperative society or company or association of apartments, his right, title and interest in the land and building by executing a document in that regard in accordance with the agreements executed under Section 4 of the MOFA.
13. In event of non compliance of the obligation by the Promoter to convey his title to the Society, the provisions of Sub-section (3) of Section 11 permits the cooperative society to approach the Competent Authority seeking certificate that the Society is entitled to have the unilateral deemed conveyance executed in their favour and to have it registered.
14. Under Sub-Section (4) of Section 11, the Competent Authority, upon receipt of an application through members of cooperative society under Sub-Section (3), is required to conduct an enquiry and after verifying the authenticity of the documents submitted, by giving the Promoter a reasonable opportunity of being heard, after arriving at a satisfaction as to the entitlement of the Society shall issue a 11 of 23 wp1334-21f certificate conveying the right, title and interest of the promoter in the land and building in favour of the Applicant as deemed conveyance. Section 11 of the MOFA reads thus :
"11. Promoter to convey title, etc., and to execute documents, according to the agreement.
(1) A promoter shall take all necessary steps to complete his title and convey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid or to an association of flat takers or apartment owners, his right, title and interest in the land and building, and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.
(2) It shall be the duty of the promoter to file with the Competent Authority, within the prescribed period, a copy of the conveyance executed by him under sub-section (1). (3) If the promoter fails to execute the conveyance in favour of the Co-operative society formed under section 10 or, as the case may be, the Company or the association of apartment owners, as provided by sub-section (1), within the prescribed period, the members of such Co-operative society or, as the case may be, the Company or the association of apartment owners may, make an application, in writing, to the concerned Competent Authority accompanied by the true copies of the registered agreements for sale, executed with the promoter by each individual member of the society or the Company or the association, who have purchased the flats and all other relevant documents (including the occupation certificate, if any), for issuing a certificate that such society, or as the case may be, Company or association, is entitled to have an unilateral deemed conveyance, executed in their favour and to have it registered. (4) The Competent Authority, on receiving such application, within reasonable time and in any case not later than six months,
12 of 23 wp1334-21f after making such enquiry as deemed necessary and after verifying the authenticity of the documents submitted and after giving the promoter a reasonable opportunity of being heard, on being satisfied that it is a fit case for issuing such certificate, shall issue a certificate to the Sub-Registrar or any other appropriate Registration Officer under the Registration Act, 1908, certifying that it is a fit case for enforcing unilateral execution, of conveyance deed conveying the right, title and interest of the promoter in the land and building in favour of the applicant, as deemed conveyance.
(5) On submission by such society or as the case may be, the Company or the association of apartment owners, to the Sub- Registrar or the concerned appropriate Registration Officer appointed under the Registration Act, 1908, the certificate issued by the Competent Authority alongwith the unilateral instrument of conveyance, the Sub-Registrar or the concerned appropriate registration Officer shall, notwithstanding anything contained in the Registration Act, 1908, issue summons to the promoter to show cause why, such unilateral instrument should not be registered as 'deemed conveyance' and after giving the promoter and the applicants a reasonable opportunity of being heard, may on being satisfied that it was fit case for unilateral conveyance, register that instrument as, 'deemed conveyance'."
15. The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964 (for short, "Rules of 1964") have been framed in exercise of the powers conferred under Section 15 of MOFA. Rule 5 prescribe the particulars to be contained in the agreement which is required to be in accordance with Form V. Clause 13 of Form V which is the model Agreement provides for the covenant as to the conveyance which reads thus:
13 of 23 wp1334-21f "13. Unless it is otherwise agreed to by and between the parties hereto the Promoter shall, within four months of registration of the Society or Limited Company, as aforesaid cause to be transferred to the Society or Limited Company all the right, title and the interest of the Vendor/Lessor/Original Owner/Promoter and/or the owners in the aliquot part of the said land together with the building/s by obtaining/ or executing the necessary conveyance/and or assignment of lease of the said land (or to the extent as may be permitted by the authorities) and the said building in favour of such Society or Limited Company, as the case may be such conveyance/assignment of lease shall be in keeping with the terms and provisions of this Agreement."
16. Thus under the statutory scheme of MOFA, the Promoter is required to convey his right, title and interest in the land and building to the association of the flat purchasers within a period of four months from the registration of the Society unless otherwise agreed to between the parties and in event of non compliance by the Promoter, the duty is cast upon the Competent Authority to fulfill the obligation of the Promoter by issuing the certificate of unilateral deemed conveyance.
17. In the present case, the covenants qua the conveyance is contained in Clause 15 and 16 of the Flat Purchasers Agreements which reads thus:
"15. The Flat/Row House Purchaser/s along with other Purchaser/s of Flats/Row Houses etc. on completion of all in the building/s shall join in forming an association of apartment owners and also from time to time sign and execute all the applications for registration and/or membership and other papers and documents necessary for the formation and 14 of 23 wp1334-21f registration of such body including the bye-laws of the proposed association of apartment owners and duly fill in, sign and return to the Promoter within 15 days of the same being forwarded by the Promoter to the Flat/Row House Purchaser, so as to enable the Promoter to register the Organisation of the Flat/Row House Purchaser/s. No objection shall be taken by the Flat/Row House Purchaser/s if any changes or modifications are made in the bye-laws or the Memorandum and/or articles of Association if the same are required to be made by the Promoter as per their commitments to various persons and/or if it is required by any other Competent Authority as the case may be.
16. Unless prevented by circumstances beyond the control of the Consenting Party and Promoter, It is agreed that the said land or any part thereof along with building/s constructed or to be constructed thereon shall be submitted to the provisions of Maharashtra Apartment Ownership Act, 1970, and Flat/Row House/apartment will be conveyed by the owners and the Promoters herein within two year from and after (i) completion of construction of all buildings in the entire scheme and utilisation of entire FSI and TDR, permissible to be utilised on the said Plot as per Development Control Rules (whether previously got sanctioned or not) (ii) booking and sale of all units in the scheme, (iii) after payment of all dues, amounts and considerations including stamp duty etc. by all unit purchasers, whichever is later, Such conveyance and/or Declaration u/s 2 of the Maharashtra Apartment Ownership Act, 1970 as the case may be shall be subject to the exclusive, limited common, etc. rights of the unit/s holders and commitments of Promoter. The Promoter shall be entitled to amend/frame the Bye laws, Rules etc. of the Association as per the terms of this Agreement and also with a view to maintain decorum, beautification of the building, open ground and common amenities."
18. As submissions were canvassed as regards the entitlement of the parties to the unutilised FSI, Clause 54 and 55 of the flat purchasers agreement deals with the rights of the Promoters as 15 of 23 wp1334-21f regards the unutilised FSI and additional FSI, if generated, and reads thus:
"54. If any portion of the said property adjoining the existing road is or will be reserved for the purpose of road widening or D.P. Road then the corporation may pay the compensation therefor in terms of additional F.S.I. in respect of the said portion under the road widening to be utilised in the remaining portion of the Property or in any other property by floating the F.S.I. In such an event and as and when such FSI is granted, the Promoter shall be entitled to use the same and additional built up area in the said property either by way of construction of new building or extension of the buildings which are presently permitted or in any other property as per the discretion of the Promoter. The Flat/Row House Purchaser has hereby given his irrevocable consent therefor and the Promoter shall be entitled to revise the plans, get the same sanctioned from P.M.C., construct the additional units permitted by P.M.C. and to allot/sell them to various persons. The Flat/Row House Purchaser shall have no objection for the said new allottees to be admitted as members of the Association. If the Corporation refuses to permit the FSI in respect of the area under road widening then the Promoter alone shall be entitled to the monetary compensation in respect thereof.
55. The Promoter shall be entitled to use the present unutilised and/or additional built up area/F.S.I./T.D.R. in respect of the said Property in any other property by floating the same and/or in the same property as and when the same is permitted either by way of construction of new building or extension of the building which are presently permitted. Likewise the Promoter shall also be entitled to use FSI pertaining to other property in this Property as and when permitted by the Corporation. The Flat/Row House Purchaser has hereby given his irrevocable consent therefor and the Promoter shall be entitled to revise the plans, get them sanctioned from P.M.C., construct the additional units permitted by the Corporation and to allot/sell them to various persons. The Flat/Row House Purchaser shall have no objection
16 of 23 wp1334-21f for the said new allottees to be admitted as members of the Association. The Association shall get the new transferees admitted as its members. Notwithstanding anything contained in this Agreement to the contrary, the Promoter shall be entitled to utilise any balance and/or additional FSI and/or TDR as stated in the above paras on any open space and/or on terraces above the building/s either prior to or after completion of building/s and even after conveyance of the property. The Promoter shall also be entitled to transfer or assign the said right to any other person. The property shall be conveyed subject to the said right."
19. As rightly held by the Competent Authority, the issue of entitlement to the additional/unutilised FSI is outside the purview of the Competent Authority constituted under Section 5A of MOFA. Coming to the covenants as regards the conveyance in favour of the Petitioner Society, Clause 15 and 16 of the agreement enjoins upon the Promoter to form association of apartment owners upon completion of all the buildings and to convey the land and building within period of two years upon completion of entire development and utilisation of entire permissible FSI and TDR, sale of all units, and, upon receipt of all consideration whichever is later.
20. The Competent Authority has held that there is non compliance of Rule 9 of the Rules of 1964 by the Respondent No.2. The Competent Authority has further held that the agreements executed with the flat purchasers do not set out any time period within which the conveyance was to be executed and thus there is default on part of the Respondent No.2 in executing conveyance within the 17 of 23 wp1334-21f prescribed period. Once such a finding has been arrived at, the Competent Authority was then required to conduct an inquiry and ascertain the area of the land and the building to be certified for enforcing the unilateral execution of the conveyance deed.
21. What has also escaped the attention of the Competent Authority is that by its reply dated 24 th January, 2017, the Respondent No.2 had conveyed its willingness to execute the conveyance in respect of area admeasuring 1627.78 square meters alongwith the proportionate area in the open spaces.
22. There was thus no dispute that conveyance had to be executed and the inquiry was restricted to the area of the land and building to be conveyed. For the purpose of simplification of the deemed conveyance procedure, the Government of Maharashtra has issued Government Resolution dated 22nd June 2018. In Clause 2(B)(iv) of the Government Resolution, the factors which are required to be considered by the District Dy. Registrar/Jt. Registrar and Competent Authority while passing deemed conveyance order and certificate are laid down. Sub-clauses (1), (3) and (4) of Clause 2(B)(iv) of the said Resolution reads thus :
"1) If there are many buildings on one plot and have a separate co-operative society of each building and if construction of some of them is incomplete then while making Deemed Conveyance of completed building, undivided share of occupancy right in the proportion of 18 of 23 wp1334-21f construction on the proportionate area of the construction of the building of such society or ground coverage or plinth area, similarly open space, common services and facilities, roads should be given."
"3) If there is more than one society in one layout and out of them only one society has made such application, similarly other societies are not co-operating for conducting measurement of the land of the applicant society then the District Dy. Registrar, Co-operative Societies, and Competent Authority shall suggest the applicant society to conduct the measurement according to the approved plan from the Architect on the panel of the Competent Authority who approved the construction plans of the concerned society and submit the report regarding area of the society.
4) If the developer did not complete the project in expectation of getting additional F.S.I. or T.D.R. in urban area, then in such cases, deemed conveyance of the number of flats proposed as per approved construction plan and that much flats are constructed then their deemed conveyance should be made."
23. The above reproduced Government Resolution provide the guidelines in respect of the area to be conveyed where the construction is incomplete and there are multiple buildings standing on one plot who have formed their separate co-operative societies. Coming to the facts of the present case, the contention of the Respondent No.2 in reply dated 23 rd March, 2016 is that the Building Nos. "B" and "F" as well as the amenity building have to be constructed by the Respondent No.2. The guidelines of 22 nd June, 2018 govern the present situation and the purport is to grant conveyance of the land required to sustain the constructed structure along with the proportionate area in common amenities. Apart from 19 of 23 wp1334-21f the Petitioner Society, the layout consists of other independent societies. The guidelines prescribe that in event there is more than one society and other societies are not co-operating for conducting the measurement of land of Applicant society, then the Competent Authority can get the measurements carried out from an architect on the panel of Competent Authority and can get the report submitted regarding the area of the Applicant society. The Competent Authority is bound under the Government Resolution of 22 nd June, 2018, which the Competent Authority has failed to follow. The Competent Authority was bound Government Resolution of 22 nd June, 2018 to conduct the exercise of ascertaining the land required to sustain the constructed structure and thereafter to convey the land and the building.
24. As the Petitioner has already initiated civil proceedings to challenge the revised layout the same will be matter of adjudication of the Civil Court. The Competent authority is not empowered to adjudicate the issue as regards the entitlement of the property and has to act within the jurisdiction conferred under Section 11 of the MOFA.
25. The Competent Authority while granting certificate for execution of unilateral deemed conveyance has restricted the area of land to be conveyed to 1103.55 square meters and constructed built 20 of 23 wp1334-21f up area to 1627.78 square meters on the basis of the revised layout plan of 13th January, 2017. The Competent Authority has further held that the area of 1628.08 square meters of the Row Houses should be deducted from the larger land and balance area to be transferred to the Petitioner. From the material which is available on record before this Court, the basis for the calculation of an area of 1103.55 square meters to be conveyed is not disclosed. The Competent Authority has merely relied upon the revised sanctioned plan of 13 th January, 2017 and granted deemed conveyance of 1103.55 square meters. There is clear disregard of the Government Resolution of 22 nd June, 2018 which provides that conveyance is to be granted of land required to sustain the constructed structure along with the proportionate area in common amenities. The inquiry contemplated by the government resolution was thus not carried out by the Competent Authority. CONCLUSION:
26. In light of the discussion above, the Competent Authority having held that the Promoter has failed to comply with its obligations under Rule 9 of Rules of 1964, was bound to consider the Government Resolution dated 22nd June, 2018 before granting certificate for execution of unilateral deemed conveyance only in respect of 1103.55 square meters and constructed area of 1627.78 sq.mtrs. and to inquire into the land required to sustain the
21 of 23 wp1334-21f constructed structure. It was incumbent upon the Competent Authority upon arriving at a satisfaction that there is non compliance of the obligation of the Promoter to step in and enforce unilateral execution of conveyance deed conveying the right, title and interest of the Promoter in the land and the building in accordance with the Government Resolution dated 22nd June, 2018. Resultantly, the impugned order of Competent Authority dated 26 th May, 2017 is quashed and set aside. As it is necessary to determine the entitlement of the Petitioner Society to the area of the land and building, the matter is remanded to the Competent Authority to decide the application filed under Section 11 (3) afresh as to issuance of certificate of deemed conveyance in respect of the land and the building in accordance with the Government Resolution dated 22 nd June, 2018.
ORDER:
27. The Petition succeeds and the following order is passed.
(i) Order dated 26th May, 2017 of the Competent Authority is quashed and set aside.
(ii) The Application No. D.C.1002293/2016/4957 is remanded to the Competent Authority to be decided afresh in light of the observations above. If necessary the Competent
22 of 23 wp1334-21f Authority to appoint an Architect from the panel of the Competent Authority to conduct the measurement according to the approved plan and call for a report regarding the area of the Society.
(iii) Parties are at liberty to raise necessary submissions for determining the entitlement of the Petitioner-Society to conveyance of the land and building.
(iv) Writ Petition stands allowed in the above terms. Rule is made absolute.
28. In view of the above civil applications if any does not survive for consideration and stand disposed of.
[Sharmila U. Deshmukh, J.] 23 of 23 Signed by: Sanjay A. Mandawgad Designation: PA To Honourable Judge Date: 04/07/2024 18:44:02